9911796707
TMI Blog1988 (10) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... hoto Studio (hereinafter referred to as appellant No. 1). The Additional Collector, however, allowed the goods to be redeemed on payment of fine of Rs. 20,000/- in lieu of confiscation and payment of Customs duty at the appropriate rate, under Section 125 of the Customs Act, 1962. He also imposed a penalty of Rs. 20,000/- on appellant No. 1 under Section 112 of the Customs Act. Appeal No. C/2354/88-NRB has been filed by the Appellant No. 1 against this order. 2. In the impugned order the Additional Collector has held the sale of one Television as illegal. On this account he has imposed a penalty of Rs. 1,000/- on Shri Mohd. Yamin (hereinafter referred to as Appellant No. 2) under Section 119 of the Customs Act. Appellant No. 2 has challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Collector of Central Excise, Meerut, Shri Dhanda, Consultant, requested that on the date of personal hearing he might be given an opportunity to cross-examine the Superintendent Central Excise who headed the party of HQrs (Preventive) Intelligence which had searched the business premises of M/s. Krishna Photo Studio on 17-10-1986. Shri Dhanda explained in that letter that the cross-examination was very essential to establish that the statement of Shri R.K. Malhotra was recorded on that date under duress and inducement of relief if his client gave the statement as desired by the authorities. The Additional Collector did not give the opportunity of cross-examination as requested nor has he given any reason for not acceding to the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll these items are old and used and some of them are out-dated and the model is discontinued. The Additional Collector has not given any reason why he has discarded the expert opinion. (iv) (a) The articles mentioned against srl. Nos. 1, 2, 3, 4, 5, 11, 13, 16, 19 & 20 belong to Customers, friends and relative which were received for repair or getting certain jobs done. Hair Drier shown against srl. No. 20 belongs to the wife of Shri R.K. Malhotra and was brought to the shop for getting the cord changed. Item Nos. 13, 16 & 19 belong to Smt. Gulshan Sehgal who gave these to the appellants for checking and dubbing certain programmes as already indicated earlier. (b) The articles mentioned against srls. No. 8, 9, and 10 of the list were give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (vi) Except Item No. 16, all other goods are not notified goods. The burden of proof that the same are smuggled goods rests on the department. The Department has not discharged that burden. On this point the decisions of this Tribunal, reported in 1988 (33)-ELT 388(T) and 1988 (16)-ECR-534(T) are relied on. (vii) Denial of the facility of cross-examination has resulted in the denial of natural justice, which has vitiated the entire proceeding. In support of this argument reliance has been placed on the Tribunal's decision reported in 1988 (36)-ELT-304 (T). (viii) The show cause notice did not say that the duty was demandable. By demanding duty in the adjudication order, the Additional Collector has gone beyond the scope of the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed SDR has drawn attention to the proviso to Section 125 of the Customs Act in which it is clarified that any fine in lieu of confiscation of goods imposed under sub-section (1) of Section 125 shall be in addition to any duty chargeable in respect of such goods. Regarding penalty imposed on appellant No. 2, Shri Kumar has fairly conceded that the penalty could not be imposed under Section 119 of the Customs Act. 9. I have gone through the records of the case and have considered the arguments of both sides. I find from the photo-copy of letter dated 23-6-1987 written by Shri S.K. Dhanda, Consultant for the appellants to the Additional Collector of Central Excise, Meerut that the learned consultant specifically requested for an opportunity t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be remanded to the Additional Collector of Customs, Meerut for de novo adjudication after giving an opportunity of cross-examination to the appellant No. 1. Secondly, the appellant No. 1 contended before the Additional Collector that the seized goods were old and used. The adjudicating authority got the goods examined by an expert as per request of the appellant. He has not discussed about the condition of the seized goods or the expert's opinion and has not given any findings. He has not also given any reason as to why he has ignored the opinion of the expert. As he got the goods examined by an expert at the request of the appellant, he should have given his findings thereon before passing the adjudication order. For reasons best known t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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