9911796707
Advanced Search 
TMI Blog1992 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The penalty is already paid and the appeal is being pursued. This case pertains to the seizure of readymade and used garments in terms of the Search List made on 8-1-1990. The same were taken from Agartala to Calcutta through Air under Consignment Note. The Customs Officers seized the same at Calcutta Airport, which were contained in 9 cardboard packages. The officers found 1350 pieces of shirts of assorted colours and sizes of foreign origin. Their case is that the appellant could not produce any document and therefore, the same were seized on a reasonable belief that they were smuggled into the country. Show cause notice was issued. Appellant filed the reply to it. After adjudication, the Adjudicating Authority passed the order confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as examined personally and he denied the same. Shri Chatterjee, learned Counsel, also states that this fact that Shri Paul was examined personally, was not mentioned in the show cause notice and no such statement was given to him to justify this stand. He draws my attention to the written arguments of the appellant, produced before the Adjudicating Authority, which would show that he had stated in the arguments that the person, Shri Paul was not contacted personally and if contacted it would have thrown light. He also states that it was mentioned therein that Shri Paul could have satisfied about the source of the acquisition of the garments in question. But without supplying any such material it was mentioned in the orders that Shri Paul wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 56 (Tri.) = 1990 (15) ETR 714 in the case of Sukumar Mondal & Ors. v. C.C. (P), W.B.; 1991 (51) E.L.T. 565 (ERB : CEGAT : Calcutta) in the case of Yusuf Noor Mohammed v. C.C. (P); 1988 (33) E.L.T. 388 (WRB-CEGAT) in the case of Kishan Shamdas Bhatia & Another v. C.C., Bombay; and 1983 (12) E.L.T. 639 (Tri.) = 1983 ECR 344D (CEGAT, NRB) in the case of Jeth Mal v. C.C.E., Jaipur. Shri Chatterjee further states that suspicion, however, strong cannot take the place of proof. In this connection, he relies on the following decisions : (i) 1979-Criminal Law Journal-962 (S.C.) = 1983 (13) E.L.T. 1611 (S.C.) and (ii) 1991 (53) E.L.T. 22. He also states that these garments are sold by the Customs themselves and are available in the open market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S. Paul, found at page-16A was dated 26-1-1990 and the same was received by the appellant on 3-2-1990 or later as could be seen from the postal stamp. It is, therefore, contended that this was only an afterthought. He also states that enquiries were made and Shri Paul had denied of any such transaction as was retracted in the orders of the lower authorities. Shri Sarkar also states that even though the goods were not notified, still the burden has shifted on to the appellant. In this connection, he relies on the following decisions : 1986 (25) E.L.T. 811 in the case of Jain Enterprises v. Collector of Customs and 1990 (50) E.L.T. 265. Relying on these decisions he states that the bona fide purchase of the goods in question has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice were called. The admission of the appellant was that the seized goods were purchased by him from the passengers coming from abroad. This admission by itself does not establish that the goods were smuggled into India. The goods can be said to be smuggled into India when they were imported without payment of duty or in violation of restrictions or prohibition regarding the entry of those goods into India. There was no evidence that the passengers who had sold the goods to the appellant had not paid the duty. The burden was on the department and the department had not discharged this burden. Even if we assume that the goods are of foreign origin that by itself would not be sufficient to order confiscation in the absence of clear evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut mentioning the same in the show cause notice, cannot be relied on against the appellant, in view of the decision of the Supreme Court, which the learned Counsel for the appellant, has cited before me supra. The show cause notice only mentions that some enquiry was conducted and it was found that Shri Paul was not dealing in such goods. What was the enquiry conducted, was not mentioned in the show cause notice. In the written arguments before the Adjudicating Authority it was specifically mentioned that if Shri Paul was contacted, this transaction will be proved. But after the submission of the written arguments for the first time, when the Adjudication Order was passed, it was mentioned therein that Shri Paul denied the transaction witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
