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TMI Blog1988 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... gency covering plastic moulded components, electronic components with G. Rs, and a challan of M.M.T.C., Calcutta covering 105 pcs. of copper bars etc. These, however, do not include any bill of entry covering the articles namely plastic moulded components, electronic components, Tape Decks etc. and only challans of the Customs Clearing agent viz. Lok Nath Shipping & Clearing Agency was available with the driver, which created a suspicion regarding illegal importation of these goods to India without valid documents. The Truck was brought to the Varanasi Customs & C.E. office for thorough checking. On interrogation the driver stated that the aforementioned documents were given to him by the transporter. The Truck was then unloaded and checked in the presence of two independent witnesses. The officers examined the goods and a list was prepared in respect of each goods separately which are summarised in Annexures to the seizure list containing 1000 pcs. of electronic bicycle horns, A.M. Radios, 3-in-l, 1080 pcs. of Radio Circuits semi-finished with speaker, 2004 pcs. of bodies of portable radio cassette players, 2000 pcs. of speakers, 2 cartoons of plastic moulded components in loose, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring was granted to all of them and the goods mentioned in Annexures 'B to 'H' were ordered to be released in favour of the appellant. But the goods mentioned in Annexure 'A' to the Panchnama viz. Body of 3-in-l, two tone electronic bicycle horns in 20 cartoons were confiscated and a penalty of Rs. 5,000/- was also imposed on the appellant under Section 112 of Customs Act. It is against that order this appeal is filed. 4. The learned Advocate, Shri S.K. Bagaria appearing for the appellant contended that there was no scope whatsoever to raise any dispute as regards the identity of the goods. It was his contention that the said goods were shipped by the foreign suppliers under their invoice No. M.N. 139/87, dated 27-10-1987 wherein the description thereof was mention as "20 cartoons of plastic moulded components - Plastic Body of A.M. Radio". It was also stated in the said invoice that the said goods were packed in 20 cartoons bearing shipping marks "J.J. Calcutta C/No. 1-20" which is mentioned in the Bill of Lading, and Bill of Entry and that the seizure list also shows that the seized goods were the same 1000 pcs. of Plastic Moulded components - Plastic Body of A.M. Radio packed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n internal page 5 of the order of adjudication. It was his contention that in Annexure 'A' of the Panchnama the country of origin of the goods in the bill of entry, invoice, has been shown as 'China' whereas on actual verification, the goods are found to be made in 'Hong Kong'. He further contended that the description of the goods as per Bill of Entry and invoice and Packing list has been shown as Plastic body of A.M. Radio, whereas on actual verification the goods are found to be "Plastic body of three-in-one two tone electronic bicycle and A.M. Radio". Hence, he contended that the confiscated goods are not those which are claimed to have been imported by the appellant vide Bill of Entry No. 1-1123 dated, 17-12-1987. 8. It was also his contention that though the goods are not notified and though Section 123 of the Customs Act is not attracted, the circumstances in this case has shifted the burden on the appellant to prove that the goods are licitly imported and in this connection he relied on a decision of the Tribunal reported in 1986 (25) E.L.T. 811 (Jain Industries v. Collector). He also contended that under Section 106 of the Evidence Act it was for the appellant to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce No. M.N. 139-87, dated 27th October, 1987 wherein the description was mentioned as "20 cartoons of Plastic moulded components - Plastic body of A.M. Radio". It was further clearly stated in the said invoice that the said goods were packed in 20 cartoons bearing shipping marks "J.J.-Calcutta C. No. 1-20". The same description was also mentioned in the relevant Bill of Lading. In the Bill of Entry also the description of the said goods was mentioned on the basis of the said documents of the foreign suppliers. From the seizure list in question it would be clearly evident that the seized goods were also the same 1000 pcs. of Plastic moulded components - Plastic body of A.M. Radio packed in 20 cartoons and bearing marks 1-20. The description has been given as 3-in-l two tone electronic bicycle horn - A.M. Radio. There was or there could be no question of alleging that the said goods were not the same which were imported by the appellant as aforesaid, or that the same were not covered by the Bill of Entry No. 1-1123, dated 17-12-1987. The learned adjudicating authority even failed to appreciate that admittedly on all the packets the words "Plastic body of A.M. Radio" were duly mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porters & Manufacturer's Representative G.P.O. Box 9556 Hong Kong TO WHOM TO EVER IT MAY CONCERN 'The goods "Plastic Body of A.M. Radio" 1,000 sets which is engraved as Made in Hong Kong is actually Made in People's Rep. of China, because our all production are made in China factory and our mould which are use to use in Hong Kong, we are using the same mould in China factory. So the goods are engraved "Made in Hong Kong" and actually produced in our China factory. For your information most of Hong Kong factories has shifted their factories to China because of cheap labour. We again confirm that the body of A.M. Radio (Made in Hong Kong) is People's Rep. of China Origin.' 15. It is thus seen from the clarification that these goods were actually made in People's Republic of China. On this the learned SDR however contended that this is an afterthought. We feel that when the foreign exporter has given a confirmation there is no reason for us to doubt the veracity of this confirmation and there is no reason as to why the exporter should give a false certificate to this effect. There is also no reason to believe that this is a made-up document in collusion with the exporter. No dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are imported goods illicitly. In this connection, he relied on the decision reported in 1986 (25) E.L.T. 811 (Jain Industries v. Collector), wherein it was held that the statement of the appellant along with the circumstances goes to show that the burden was discharged by the department. But that case is not applicable to the facts of this case as in this case there is no such statement of the appellant to the effect that these are contraband goods. There are also no circumstances in this case to show that such burden shifted on the appellant; on the contrary as we have already discussed, the identity of the goods have been established by the appellants on the basis of probabilities as those cleared by the Calcutta Customs, in such circumstances, there is no burden on the appellant to prove the licit importation. Even otherwise, assuming that the burdenis on the appellant, the appellant has discharged it by clearly proving that these are the same materials which were cleared by Calcutta Port Trust after payment of due tax by the appellant. Therefore, on consideriation of both these counts, the arguments of learned SDR cannot be accepted. It was his contention that under Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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