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TMI Blog2014 (6) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... de samples" and the total value declared was US $ 75 for customs purposes. Shri Jajodia claimed that he had imported these consignments for supply to M/s. Cadilla Healthcare Ltd. against their confirmed purchase order. A show cause notice was issued proposing to revise the assessable value declared for the said goods to Rs. 20,49,300/- and demanding a duty of Rs. 11,68,320/- and imposing penalty, interest, etc. and the notice was adjudicated by the Commissioner of Customs (Imports), ACC, Sahar vide O-I-O No. CC- 67/2002, dated 18-12-2002 confirming the demands. 3. Further investigations carried out by DRI with Sri A.K. Sarkar, Vice-President of M/s. Cadilla Healthcare Ltd. revealed that during the past period also, the appellant had supplied 24 kgs of Mifepristone during April to June, 2002, having a total value of Rs. 176.28 lakhs. The relevant documents for the said supply produced by M/s. Cadilla revealed that the goods had been manufactured by Tianjin Tiango International Economic Development Corporation (Tianjin in short). Sri Sarkar also revealed that in addition to the above goods, Sri Jajodia had also supplied 187 kgs. Dexamethasone Sodium Phosphate (DSP in short) tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial assistance to his firm. Sri John also confirmed that they had not manufactured or sold DSP since 1999. Statements of other employees of Earnest Healthcare such as Chandrasekhar Vyas, Technical Director (on 17-12-2002), Gurudayal Kaushik, Supervisor (on 13-1-2003), Sameera Gazge, Secretary of Mr. Jon (on 15-1-2003) were recorded which confirmed the fact M/s. Earnest Healthcare had not supplied any DSP to M/s. LCPL and the entire documentation for the supply were fabricated at the behest of Mr. Jajodia. 3.3 When Sri Jajodia was confronted with these evidences on 17-12-2002, he admitted that Earnest Healthcare had not supplied the DSP and the entire transaction was fake. He further stated that these goods were actually sourced from 3 Delhi based firms and was supplied through one Harishbhai of Delhi Chemical Market and that he did not have any details of Sri Harishbhai. 3.4 Sri Jajodia was arrested and produced before the Additional Chief Metropolitan Magistrate on 17-12-2002 and he was remanded to judicial custody. Sri Jajodia moved bail application on health grounds. Sri Jajodia had deposited an amount of Rs. 40 lakhs towards duty liability before arrest and duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 3.7 The investigations conducted revealed that Sri N.P. Jajodia, Managing Director of LCPL had run an organized syndicate to smuggle expensive chemicals into India and sold such chemicals to several parties, utilized the services of carriers to smuggle the goods into India in contravention of the Customs Act and used the names of fictitious persons and firms to conceal the smuggled nature of the goods. He did not provide any information about the carriers working for him. Sri N.P. Jajodia expired on 18-3-2003. Accordingly a show cause notice dated 21-7-2003 was issued to M/s. LCPL demanding customs duty of Rs. 1,66,95,951/- at the rate applicable to baggage on a value of Rs. 2,78,25,987/- in respect of 10 types of chemicals for the supplies made by them during the period April to November, 2102 to their various customers adopting the contemporaneous import value (CIF) of like materials imported through licit channels under the provisions of Section 28 of the Customs Act, 1962 read with Section 125 ibid along with interest thereon under Section 28AB. The notice also proposed to confiscate the said goods under Section 111(d) and (l) of the Customs Act, and to impose penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CSI Airport, who adjudicated the case has jurisdiction only over the goods imported through CSI airport, Mumbai. The department has not brought any evidence on record to establish that the goods involved in the instant case were "smuggled" through CSI Airport. (7) The goods are neither specified under Section 123 nor notified under Chapter IVA. Therefore, the burden of proving that the goods are smuggled goods is on the department. This burden has not been discharged. The appellant has established that such goods are manufactured in India also. He relies on the following judgments in support of this contention :- (a) National Radio Products - 2011 (263) E.L.T. 236 (Cal.) (b) Ritu Kumar - 2006 (202) E.L.T. 754 (Cal.) (c) Aakash Enterprises - 2006 (205) E.L.T. 23 (Bom.) affirmed by Supreme Court - 2007 (215) E.L.T. A103. (d) T. V. Mohammed - 2006 (204) E.L.T. 90 (Tri.). (8) Duly cannot be demanded at the highest baggage rate in view of the law laid down by the Hon'ble Apex Court and the Tribunal in the case of M. Amba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority and has not been considered by the said authority, it would be incorrect and inappropriate for the appellate authority to give a finding thereon. Be that as it may, M/s. Lark Chemicals Pvt. Ltd. is situated in Mumbai and not anywhere else. The cause for investigation originated in Mumbai with the detaining of the post parcels and the subsequent seizure of the same and adjudication proceedings connected therewith. The Managing Director of the appellant firm Mr. N.P. Jajodia, has clearly admitted that the goods supplied to M/s. Cadilla were brought through carriers in their baggage by mis/non-declaration. If that be so, it is only reasonable to presume that the goods were smuggled through passenger baggage through Mumbai air-port. Mr. Jajodia has not divulged any details regarding the carriers or when or how they arrived with the goods. When pressed for the details in this regard, he refused to divulge the details as can be seen from his statements recorded under Section 108 of the Customs Act. Therefore, the appellant cannot take the plea now that the cause of action took place elsewhere. Smuggling by its very nature is a clandestine activity and only the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s position has been reconfirmed by Mr. Jajodia in his further statement dated 17-12-2002 and also before the Addl. Metropolitan Magistrate when he was arrested and applied for bail. These statements have never been retracted. If that be so, the department is not required to prove the foreign origin of the goods and the smuggled nature of the goods. It is a settled legal position that "admitted facts need not be proved" as held by the Hon'ble High Court of Madras in the case of Govindasamy Raghupati [1998 (98) E.L.T. 50 (Mad.)]. 6.4 As regards DSP, the initial version of Mr. Jajodia about its procurement was that the same was supplied by Earnest Healthcare. From the statements of Mr. I. John, MD of the said firm, dated 12-12- 02, 16-12-02 and 7-1-03, it is evident that the said goods had not been supplied by them and they had only issued fabricated invoices as per the request of Mr. Jajodia. This position has been further confirmed by the employees of Earnest Healthcare, namely, statement dated 17-12-2002 of Mr. Chandrasekhar Vyas who confirmed that they had not manufactured DSP since early 1999 and they did not have facility to manufacture huge quantity of 187 kgs. of DSP. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd bail was obtained on such admission, we do not think there is any need for further evidence to show that the goods are smuggled. It is a well settled position in law that statements recorded under Section 108 of the Customs Act is an admissible evidence under Section 25 of the Evidence Act. In Illias v. Collector of Customs, Madras decided on 31 October, 1968 [AIR 1970 SC 1065 = 1969 SCR (2) 613 = 1983 (13) E.L.T. 427 (S.C.)], the Hon'ble Supreme Court held that even though the customs officers have been invested with many of the powers which an officer in charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of S. 25 of the Evidence Act and so the confessional statements made by accused persons to customs officials would be admissible in evidence against them. The Apex Court followed their decision to the same effect in the case of Romesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461 = 1999 (110) E.L.T. 324 (S.C.). 6.4.2 Another corroborative evidence with regard to the foreign origin of DSP is the test reports for the product given by the Chinese manufacturer, M/s. Tianjin rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp. 63 at p. 65 "According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nix Mills Ltd. v. UOI [2004 (168) E.L.T. 310 (Bom.)] held that - "There is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Onus means the duty of adducing evidence." In this case, the department established the nature of foreign origin of the goods from the documents recovered from M/s. Cadilla and the statement of the VP of the said firm stating that they had procured Mifepristone and DSP of Chinese origin from M/s. LCPL for which no duty paying documents were given to them. When Mr. Jajodia was confronted, he admitted to smuggling Mifepristone through carriers and as regards DSP, he stated that had procured them indigenously. The department verified the details of indigenous procurement as given by Mr. Jajodia and found them to be false. Then the onus shifts back to Mr. Jajodia and LCPL to adduce evidence about the licit procurement of DSP which they have completely failed to do. On the other hand the evidence by way of test reports of the orginial manufacturer and the statement of the VP of M/s. Cadilla, statement of the employee Mr. Rungta, adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l & Co. cited supra and the decision of this Tribunal in the said case subsequent to the Apex Court judgment. There is merit in this argument. In the instant case for the purpose of calculation of duty, a rate of 60% adv. has been adopted which is the rate applicable for passenger's baggage under CTH 9803. The said heading applies to "All dutiable articles imported by a passenger or a member of a crew in his baggage". In the Ambalal case cited supra, the Hon'ble Apex Court held that smuggled goods cannot be considered as imported goods. Therefore, even if the goods have been brought into India by concealing the same in the baggage, the goods cannot be classified as baggage. The Supreme Court has further held that in respect of smuggled goods, no duty exemption shall apply. Therefore, the rate of duty to be applied in the instant case is the tariff rate applicable on the goods after properly classifying the same. As per technical literature Mifepristone is a synthetic steroid compound used as a pharmaceutical and is also a powerful glucocorticoid receptor antagonist. Dexamethasone Sodium Phosphate is a Glucocorticoid. Their possible classification would be either under Chapter 29 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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