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TMI Blog2002 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... son of Late Sukhmal M. Mehta, Manager of M/s. Sachin residing at 14, Mukta Ram Babu Street, Kolkata-700 007. 2. The Commissioner, after considering the submissions, has ordered the confiscation of the stones of foreign origin valued at Rs. 1,50,13,475.00 (Rupees one crore fifty lacs thirteen thousand four hundred and seventy-five) under Section 111 of the Customs Act, 1962. However, he has given an option to redeem the same on payment of a fine of Rs. 80.00 lakhs (Rupees eighty lakhs) and Customs Duty at appropriate rate. The other stones not covered by examination and valuation report by Government-approved valuer, were ordered to be released to the noticees. Indian currency of Rs. 6,98,880.00 was ordered to be confiscated under Section 121 of the Customs Act, 1962 and a personal penalty of Rs. 15.00 lakhs each was imposed on both S/Shri Sachin A. Mehta and Satish A. Mehta under Section 112 of the Customs Act, 1962. 3. These two appeals have been filed by Shri Sachin A. Mehta and Shri Satish A. Mehta and were heard. After hearing both sides duly represented by Shri B.N. Chattopadhyay, learned Consultant for the appellants and Shri T.K. Kar, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .), Mumbai. Regarding seizure of Indian Currency of Rs. 6,98,880/- Mr. Sachin Mehta denied the charges that the seized Indian currency are the sale proceeds of illegally imported goods. In this regard he also cited the following decisions of the Hon'ble Courts :- (i) 1998 (25) RLT 299 (T) (ii) 1993 (46) ECR 44 (T) (iii) 1993 (65) E.L.T. 558(T) (iv) 1992 (61) E.L.T. 650 (T) Mr. B.N. Chattopadhyay and T.K. Ghosh, Advocate duly authorised by both the noticees appeared on the date fixed for personal hearing, they reiterated their stand already given by each of the noticees dated 26-6-2001 in response to the show-cause-notice. FINDINGS I have examined the facts of the case carefully and it is seen that on the basis of specific information the Customs Officer of P&I Branch, Kolkata effected a seizure of miscellaneous stone (Panna, Rubi, Chuni) of foreign origin valued of Rs. 1,79,47,462/- and Indian currency 6,98,880/- from the workshop and office premises of M/s. Sachin, 14, Muktaram Babu Street, Kolkata-700007 on 16-9-2000 on the strength of search warrant. On the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of professional. I rely on following judgments : - (1) Cross-examination not a part of natural justice but only that of procedural justice and not a 'sine qua non' Poddar Tyres (Pvt) Ltd. v. Commissioner - 2000 (126) E.L.T. 737. (2) Right to confront witnesses is not an essential requirement of natural justice where the statute is silent and the assessee has been offered an opportunity to explain allegations made against him Kumar Jagdish Ch. Sinha v. Collector - 2000 (124) E.L.T. 118 (Cal H.C.). (3) Strict rule of burden of proof applicable to criminal prosecution may not be applicable to proceedings before Customs authorities. A.K. Hanbeen Motarred v. Collector - 2000 (125) E.L.T. 173 (Mad HC). (4) (a) Cross-examination is not a must in each and ever adjudication proceedings (b) when rejected, reasons to be given. International Electron Devices Ltd. v. Commissioner - 1999 (107) E.L.T. 238 (T). (5) Constitutional Bench (consisting of 5 judges) in the case of State of J & K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1992 (60) E.L.T. - 347 (Tri.) - Sillendranath Seta v. Collector of Customs., (4) 1989 (39) E.L.T. - 91 (Tri.) - Pannaben v. Collector of C. Ex., (5) 1988 (38) E.L.T. - 705 (Tri.) - G.V. Chaudakutty & Others v. Collector of C. Ex., (6) 1988 (33) E.L.T. - 741 (Tri) - Kadar Babu v. Collector of C. Ex., (7) 1987 (32) E.L.T.- 479 (KER) - Asstt. Collr. v. Kallatra Abdul Kadar & Other, (8) 1997 (89) E.L.T. 646 (S.C.), (9) 1997 (90) E.L.T. 241 (S.C.), and (10) 1996 (83) E.L.T. 258 (S.C.). The investigation have conclusively proved that Stones under seizure are of foreign origin on the strength of examination and valuation report dated 18/19-9-2000 by the Government approved valuer namely M/s. S.K. Mehta & Co. of 57A, Aravinda Sarani, (3rd Floor), Kolkata - 700 005 whereas the noticee parties have failed to produce even a single bill/voucher/bill of entry etc. to prove licit importation of the Stones. Therefore, the burden to prove that goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ima facie, justifies the said reasonable belief. In the present case, a large quantity of coloured stones and other valuables have been found in a business premises known to be belonging any such goods. No documents could be produced for the legal acquisition of the same and the goods have, therefore, been seized. We cannot find any conflict with the same. However, it is found that Section 105(2) of the Customs Act, 1962 provides that the provisions of the Code of Criminal Procedure relating to searches shall apply subject to the modification that the word 'Magistrate', wherever it occurs, the words 'Collector of Customs' were to be substituted. The Select Committee to the Bill while going through the Customs Bill had observed as under :- "The Committee feel that the record containing the grounds of belief, etc. to be maintained under the provisions of Sec. 165 of the Code of Criminal Procedure, 1898, should be forwarded to the Collector of Customs and not to the Magistrate in order to enable the former to keep proper control over the customs officers authorising search of premises." This amendment has been incorporated. Therefore, the control on the exercise of the powers by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish the foreign origin of the goods under seizure, the seizure cannot be proceeded with under the provisions of the Customs Act, 1962. The confiscation arrived at under Section 111 without indicating the sub-sections thereof, is therefore, set aside. 3(d) We have considered the facts and the submissions made to the effect that the coloured precious stones are not covered by Section 123 of the Customs Act, 1962. It is a well settled law that the onus of proving the smuggled nature of the goods lies on the Customs. The investigations in this case have not been proceeded with to establish as to from what route the said coloured precious stones have been imported into India by violating the rules of import and the Customs barrier. It is a known fact that rough coloured stones are being imported into India for polishing at various stations for the last so many centuries. The stones under consideration are claimed to be non-workable, inasmuch as it was difficult to cut and polish them and thus they could not be sold. No evidence as relied upon by the adjudicator, has been brought by the investigator, to prove whether this claim of the appellants was correct or incorrect. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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