TMI Blog1999 (3) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... rother, Md. Salahuddin was recorded wherein he deposed that his brother was a master weaver and the silk yarn recovered from the premises belongs to his brother. He, inter alia, deposed in his statements that the goods seized from verandah were not there in the morning of 26-7-1995, when he left the house for his work. The yarn was shown to the local exporters of the area and their opinion taken, who opined that the same was of foreign origin. Subsequently, Md. Sammi Alam appeared before the authorities against the summons and tendered a statement on 26-8-1995. In the said statement, he disclosed that the seized silk yarn was received by him for weaving purposes from three different units - M/s. Gemini Silk Mills, Bhagalpur; M/s. Annapurna Silk Yarn Fabrics, Bhagalpur; and M/s. Ridhi Sidhi Textiles Ltd., Bombay. He also produced the documents showing the importation of the silk yarn in question by their respective owners and their further movement to Md. Sammi Alam. As a result of disclosure made by Md. Sammi Alam in his statement, further investigations were conducted by the Central Excise Department and the statements of the representatives of all the three firms were recorded. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f seizure. Further, whereas Md. Sammi Alam has explained that the goods were received from M/s. Ridhi Sidhi Textiles through M/s. Dolphin Courier, the representative of M/s. Ridhi Sidhi Textiles has said that they had delivered the goods to the representative of Md. Sammi Alam. M/s. Dolphin Courier and M/s. Pushpak Courier had also denied having delivered the consignment of silk yarn to Md. Sammi Alam. Further, the Commissioner has observed that the silk yarn seized was in loose condition whereas the invoices show them in bales. 6. Explaining all these points, learned Advocate Smt. R. Mookherjee, appearing for Md. Sammi Alam submitted that all these discrepancies pointed out by the adjudicating authority are explainable. Md. Sammi Alam could not appear before the Excise Authorities on the ground that he was suffering from jaundice and a medical certificate to that effect had been produced before the authorities, which has escaped the attention of the adjudicating authority. Drawing attention to the statement of Md. Salahuddin, brother of Md. Sammi Alam, it has been explained that it is only in an answer to a question that Md. Salahuddin has explained that the goods were not lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Annapurna Yarn Fabrics show the silk yarn as of 60/80 deniers whereas the said silk yarn of 60/80 deniers was not present in the seized goods. In this respect, learned Advocate for the appellant, Md. Sammi Alam has submitted that the opinion of two local exporters were taken by the Department, which opinion were never given to them at any point of time. Smt. R. Mookherjee, learned Advocate for Md. Sammi Alam further submitted that it is the first time that their names have been disclosed in the impugned Order and the same were not there in the show cause notice. She drew our attention to the reply filed by them wherein they had assailed the Department s contention that the opinion of the local exporters that the yarn was of 33/37 and 50/70 deniers were assailed on the ground that no name of such exporters had been disclosed and no opinion had been forwarded to them. She also submitted that M/s. Annapurna Yarn Fabrics are also an exporter and their opinion as against the opinion of the exporters produced by the Department, should also be considered. She, further, drew our attention to paragraph 11 of the reply to the show cause notice, wherein the specific request was made to veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced after about one month when Md. Sammi Alam had appeared in response to summons before the Central Excise Authorities and as such, there is a reasonable presumption that the same might have been procured by him. Further, the adjudicating authority has also pointed out to certain discrepancies between the statements of various persons and the documents produced by the appellants. However, all these discrepancies have been satisfactorily explained by the Advocate appearing on behalf of Md. Sammi Alam. In his statement, Md. Salahuddin, brother of Md. Sammi Alam had nowhere stated that the goods were not present in the house in the morning of 26-7-1995. He had simply stated that the goods were not present in the verandah on the said date, when he had left his house for work. This does not ipso facto, lead to the conclusion that the goods were not available at any place in the house. Similarly, the delayed appearance of Md. Alam has been explained as being on account of his suffering from jaundice in respect of which he has produced the medical certificate. We have also gone through the statement of Shri Subhash Harlalka, Director of M/s. Ridhi Sidhi Textiles, wherein he had state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir replies to show cause notice, they had made an effort to get the yarn tested by experts inasmuch as the two bales sent by M/s. Annapurna Yarn Fabrics were still intact. As such, this offer has been brushed aside by the adjudicating authority and the impugned Order passed only on the basis of two local expert opinions. This, in our view, is not the correct approach. When the appellants had made an offer to get the yarn tested, it was open to the Department to find out the exact deniers instead of rejecting their claim on the basis of the two local exporters opinion, which in any case, was never disclosed to the appellants. We also note that the discrepancy in the weight has been reasonably explained by the learned Counsels, for the appellants. The documents show the net-weight of the yarn, whereas the gross-weight has been taken into consideration by the Department. The discrepancy is only to the extent of 40.550 kgs. of silk yarn, which can be attributed to the difference in gross-weight and net-weight of the seized material. We also note that the silk yarn is not a notified item under the provisions of Customs Act, 1962 and as such, the burden to prove its illegal and smuggl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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