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TMI Blog1994 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ach firm, besides recovering customs duty on the perforating machines in question. The cases were argued together by Shri L.P. Asthana, learned advocate who appeared on behalf of the appellants while Shri M.M. Mathur, learned Joint Chief Departmental Representative appeared for the respondent Collector. In view of the commonness of the issues involved and the common arguments by the respective sides, we are passing this common order. 2. Explaining the facts of the case in the appeal relating to M/s. Northern Plastics Limited, Shri Asthana stated that they have been charged with having unlawfully acquired 25 perforating machines which were confiscated. Option was, however, given for their redemption subject to payment of fine in lieu o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then proceeded to point out that the adjudicating authority had come to the conclusion that perforating machines are not manufactured in the country only on the basis of a letter from the DGTD (Directorate General of Technical Development). He pointed out that this is an unsigned letter as can be seen from the copy thereof which has been submitted by them in the appeal. Moreover, what has been stated in this letter would not really amount to a statement that perforating machines are not manufactured in the country. They have only stated that there is no unit in their list for the manufacture of perforators. Perforators are not costly or sophisticated machines. They could be, and, in fact, are manufactured by small units which are not requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the firm, Precision Engineering from whom Jindal had purchased the goods had admitted having sold them. They had not been proceeded against by the department. There was no case at all against the appellants, Jindal and the Director, Shri Shugla. 4. Shri Asthana submitted that the next set of appeals relating to M/s. Indian Thermoplastics Pvt. Ltd., and Shri Sunil Agarwal would be covered by his arguments in respect of Northern Plastics Ltd. He reiterated his plea for the appeals to be allowed. He stated in reply to a query from the Bench that he is not pressing the point urged in the appeal that the appellants were heard by one officer while the orders were passed by another. 5. Shri M.M. Mathur, learned Joint Chief Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause of acts of commission and omission on the part of the parties who had supplied these machines to the petitioner, and other unfortunate reasons over which the petitioner does not have any control, the petitioner would wish to buy peace of mind and avoid litigation with the Government. Without in any way admitting any of the allegations or the correctness of the finding of the Senior Technical Officer as a result of his investigation, as alleged, the petitioner most respectfully submits that if the perforating machines, could not have been indigenously made in whole without use of certain imported components/parts, then to buy peace of mind and to avoid protracted litigation, the petitioner would agree to pay duty on all of such perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and goods lawfully imported into the country are available in the open market, it is not justifiable on the part of the Customs authorities, acting under Section 167(8) to demand proof of licit origin from a person in possession of the goods, and on his failure to establish it, to draw the inference that the goods must have been illicitly imported. It is not open to the Collector to presume that any goods, the entry of which into India is not wholly prohibited, should be deemed to have been illicitly imported only for the reason that the person in possession of such goods was not able to establish how he came to possess them." That the burden that was to be discharged by the department had been shifted to them also becomes evident from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the machines in question were of foreign origin and had been smuggled into this country. In the circumstances, the conclusion drawn by the adjudicating authority in confiscating the goods in question and fixing fine in lieu of confiscation and imposition of penalty on the appellant companies and their Directors cannot be supported. As regards duty the appellants had, according to the impugned order, admitted their offence of acquiring unlawfully the goods in question and paid various sums on account of customs duty. In the appeals, they have agitated the question of duty paid and sought relief by way of an order for refund of the amount deposited by them with the customs authorities. No doubt, the appellant companies had deposited these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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