TMI Blog1992 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... lue). As per the recovery memo and the panchnama the wrist watches and table timepieces were recovered from the shelves of the main counter in the shop and they were seized since Shri Amarjit Singh S/o Shri Kartar Singh, Prop. of M/s. P.K. Brothers who was present on the spot could not poduce any proof to establish their legal importation. The residential premises of Shri Kartar Singh was also searched but no indiscriminating documents were recovered. In his statement dated 19-12-1985 Shri Kartar Singh, Prop. of M/s. P.K. Brothers, Ludhiana disowned the wrist watches and table timepieces recovered from his shop and claimed that he was told by one of his employees Shri Jatinder Singh that he had brought one cloth bag, the contents of which were not known to him and which was received by him from a person outside the shop. He pointed out that according to Shri Jatinder Singh the person from whom he had received the bag was to come to collect the bag but did not turn up and the same cloth bag when recovered from the main counter of the shop was found to contain wrist watches and timepieces of foreign origin. Shri Jatinder Singh, employee of M/s. P.K. Brothers in his statements dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriving at his findings the Additional Collector also took into consideration the fact that right from the beginning, both Shri Amarjit Singh in whose presence the search of the shop was conducted and Shri Kartar Singh, Proprietor of the shop had taken the stand that they were in no way concerned with the wrist watches and table timepieces under seizure. 4. Being aggrieved by the order passed by the Additional Collector the appellants filed an appeal before the Central Board of Excise and Customs. The Board, on going through the records of the case was of the view that the order passed by the Additional Collector dropping the proceedings under Section 112 of the Act against M/s. P.K. Brothers and its proprietor Shri Kartar Singh and his son Shri Amarjit Singh was not proper and legal. The Board, therefore, under the powers vested in it under Section 129D(1) of the Customs Act, 1962 directed the Additional Collector of Customs and Central Excise, Chandigarh to apply to Customs, Central Excise and Gold (Control) Appellate Tribunal for correct determination of the points raised by the Board and imposition of adequate amount of penalty under Section 112 of the Act on M/s. P.K. Broth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the seizure memo and the panchnama. He stated that in view of the seizure memo and the panchnama, showing the recovery of the seized watches and timepieces from the shelves of the counter of the shop and the contents of the statements of Shri Jatinder Singh recorded on 19-12-1985 and 20-12-1985, the respondents version that the seized goods were recovered from a cloth bag lying on the counter and the bag was brought inside the shop by Shri Jatinder Singh after receiving it from some person ought to have been rejected by the Additional Collector as an afterthought. On these grounds he pleaded that the Additional Collector s order dropping the charges against Shri Kartar Singh, the proprietor of the firm and Shri Amarjit Singh may be set aside and suitable penalties may be imposed on them under Section 112 of the Customs Act,1962. 4B. On behalf of M/s. P.K. Brothers and Shri Kartar Singh, Shri Amarjit Singh, learned advocate Shri N.C. Chawla appeared before us. He referred to the cross-objection filed on behalf of the respondents and contended that M/s. P.K. Brothers, cannot be proceeded against in terms of the order passed by the Board under Section 129D(1) of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the respondent s contention that the words the shelves of the main counter in the shop were interpolated at a later stage between Serial Nos. 2 and 3 in the Recovery/Seizure memo. He contended that the words were recovered from the counter of the shop/business premises , in the Panchnama cannot be held to convey that the seized goods were found on the top of the counter in the shop and not in the shelves of the counter as recorded in the Recovery Memo. He stated that the claim made by Shri Amarjit Singh and certain other witnesses that the seized goods were recovered from a bag which was brought into the shop by Shri Jatinder Singh had to be rejected as an afterthought since as seen from the Panchnama and the Recovery Memo no bag was found in the premises. He added that it was unlikely that a large number of expensive foreign wrist watches would have been given by some unknown person to Shri Jatinder Singh. He contended that the respondents having failed to discharge the burden cast on them under Section 123 of the Customs Act, 1962 on account of recovery of watches of large value from their premises were liable for penalty. 6. We have examined the records of the case and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19-12-1985 after he had reached the shop as usual at 0900 hrs. the Customs Officers had recovered 358 wrist watches and few table clocks of foreign origin from the drawers of the wooden counter of the shop. He had also stated that in the morning when he had arrived at the shop he was not carrying any bag. In his statement dated 20-12-1985 also Shri Jatinder Singh had confirmed that while sitting near the counter he had seen the recovery of 358 wrist watches and a few table clocks from the shelves of the counter. He had also stated that he had no connection with the seized watches since wrist watches were being brought by the owners of the shop and they were being kept and sold by the owners themselves. It has also been the Department s case that the Panchnama and the seizure memo when read together clearly confirm that Shri Jatinder Singh s version that the seized watches and timepieces of foreign origin were recovered from the shelves of the main counter in the premises of M/s. P.K. Brothers and the respondents contention that the seized goods were seized from a bag which was brought from outside the shop and placed on the counter by Shri Jatinder Singh was an afterthought. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arching of the premises of M/s. P.K. Brothers recovered 358 watches and time pieces of foreign origin from the shelves of the main counter. He stated that he had nothing to do with the seized watches since he was only employed for carrying out repairs of watches and was drawing a salary of Rs. 900/- per month. He also stated that when he entered the shop at about 9 A.M. he did not have any bag in his hand. Shri Jatinder Singh was again questioned on the next day and in his statement dated 20-12-1985 he stated that he was present in the shop when the Customs Officers carried out the search in the presence of the witnesses and Shri Amarjit Singh was incharge of the shop at that time in the absence of his father Shri Kartar Singh, the proprietor of the shop. He pointed out that he was sitting near the main counter in the shop and he had witnessed the recovery of watches and timepieces of foreign origin by the Customs Officers from the shelves of the main counter of the shop. He stated that he was only a mechanic in the firm and he was not entrusted with any task connected with the acquisition or sale of watches of foreign origin. It is seen that both the statements of Shri Jatinder Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shop, his brother Shri Amarjit Singh/ went out of the shop for some time and during that period he saw Shri Jatinder Singh bringing the bag into the shop and seized watches and timepieces were recovered from the same bag which was lying on the main counter of the shop. Shri Upender Singh s version of the events is not worthy of credence since as observed by us earlier the Panchnama and the Recovery Memo do not give the slightest indication that the seized watches and timepieces were recovered from a bag which was lying on the counter of the shop. As observed by us earlier, had the seized watches been recovered from a bag, the Panchnama and the seizure memo would have certainly recorded the recovery of the bag. Shri Jatinder Singh in his statement dated 19-12-1985 has clearly denied having brought any bag inside the shop. 11. It has been argued on behalf of the respondents that the testimony of Shri Jatinder Singh is not worthy of credence since he had retracted his statement and also for the reason that he did not make himself available for cross-examination. In this regard we find that in his statement recorded immediately after the seizure of the watches and timepieces fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govt. of India, reported in 1982 (10) E.L.T. 386 that the right to cross-examine is not necessarily a part of reasonable opportunity and depends upon the facts and circumstances of each case, we also do not find any force in the respondents contention that Shri Jatinder Singh s statements cannot be relied upon on account of his failure to make himself available for cross-examination. 12. The Panch witnesses who are literate persons had affixed their signatures to the Panchnama and the Seizure Memo wherein the seized watches and timepieces were shown to have been recovered from the shelves of the counter in the premises of M/s. P.K. Brothers. Under these circumstances, in our view their evidence during the course of proceedings before the Collector is not worthy of credence and has to be rejected. As far as the statement of Shri Gurmeet Singh is concerned, we find that he had stated that when he came down from the first floor, he saw some watches and clocks were on the counter which were later seized by the Customs Officers. Shri Gurmeet Singh was not present when the Customs Officers recovered the seized watches and timepieces from the shelves of the counter in the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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