TMI Blog2015 (2) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... tems at Sl.No.11, 16 (i), 35, 37, 38, 39 and 41 were purchased by the appellants and the remaining items were procured on hire or lease basis. It is abundantly clear that the department had pursued the trail from the last person who purchased the goods to the immediate seller. I find that the investigations started at the appellants' premises and it extended to various places in Mumbai, Bangalore, New Delhi, and in fact the department had sufficiently proved their case to the last possible evidence. Only when the ultimate person who happens to be non-existant or it led to purchase from local Burma Bazaar as evidenced above, the investigation could not proceed any further. This clearly proves that the department had discharged its burden with so much evidence on record to prove that the impugned goods which are in possession of the appellants are illicitly imported without payment of duty as no proof of illicit import produced. Therefore, the onus is on the appellants. The ratio of Hon'ble Apex Court's decision in the case of CC, Madras And Others Vs D. Bhoormull - [1974 (4) TMI 33 - SUPREME COURT OF INDIA] and Kanungo & Co. Vs CC Calcutta and Others - [1972 (2) TMI 35 - SUPREME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of penalty on the appellants under Section 112 of the Act, the lower authority has rightly imposed penalties on all the appellants. The appellant s contention is not acceptable for the reason discussed in the preceding paragraphs as once it is held that the appellants contravened the provisions of the Act and the goods are liable for confiscation, the appellants are liable for penalty. The appellants relying on Tribunal decision in the case of M/s. Ameet Industrial Corpn. (2005 (2) TMI 581 - CESTAT, MUMBAI) for waiver of penalty is of no help to the appellants. As seen from the trail leading to involvement of 3 to 4 persons before the first appellant purchased/acquired on hire of these items, each person is unable to prove the licit nature of imports. There are number of judicial rulings by the Hon’ble High Courts and the Tribunal decisions where the penalty imposed under Section 112 is upheld on identical issues. I rely on the Hon’ble High Court of Delhi order in the case of Ajay Dahyabhai Sridhar Vs. CC, Delhi - [2010 (11) TMI 826 - DELHI HIGH COURT] and this Tribunal Division Bench decision in the case of Mujeeb Rahman Vs. CC,Chennai - [2010 (1) TMI 994 - CESTAT CHENNAI]. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Customs Act on the main appellant, M/s.Vijay TV and other co-noticees and also confiscated the items which are procured on lease/hire/loan basis and imposed redemption fine and penalties on M/s.Mass Communications, United Television (UTV), M/s.Motherland Pictures, M/s.Visual Video, Chennai, M/s.Lakshmi Video Chennai. The adjudicating authority also imposed penalty of ₹ 2,00,000/- each on 12 other companies/individuals under Section 112. 4. Out of 18 persons, only the following 6 appellants are before the Tribunal against the impugned order against whom redemption fine and personal penalty are imposed as tabulated under :- S. No. Appeal No. Appellant Redemption fine (Rs.) Personal Penalty (Rs.) 1. C/260/2008 Vijay Television Ltd. 30 lakhs 8 lakhs 2. C/261/2008 Motherland Pictures 1.50 lakhs 1 lakh 3. C/244/2008 Elixir Electronics ---- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has failed to discharge the burden of proof. He further submits that they had no reason to doubt any purchase/lease/loan from the dealers, they have acted bonafidely. In the absence of burden of proof of licit importation by the department, confiscation of the goods by the adjudicating authority is not sustainable. 8. Since the goods are not liable to confiscation, redemption fine imposed under Section 125 is not sustainable. He further submits that imposition of penalty under section 112 is not sustainable as the adjudicating authority has not specified under which clause of Section 112, penalty has been imposed as there was no specific allegation in the SCN or finding in the order as to the manner in which they have acted which rendered the goods liable to confiscation. There is no mens rea attributable to the appellant as they have acted in bonafide manner. They purchased the goods on lease from the established registered dealers. He relied on the following case laws :- (1) Ameet Industrial Corporation Vs CC (Imports), Mumbai - 2005 (184) ELT 299 (Tri.-Mumbai) (2) Metro Marine Services Pvt. Ltd. Vs CC Kandla 2008 (223) ELT 227 (Tri.-Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants to prove their case. He further submits that any contravention or provision of the Act/Section by which the goods will become prohibited under Section 11 of the Customs Act and it includes for contravention of provisions of Act or any other law. The adjudicating authority has rightly confiscated the goods and also imposed penalty under Section 112 as the goods were illicitly imported and were in possession with M/s. Vijay TV and other persons were also not able to produce any evidence of licit import. Therefore, the confiscation and imposition of penalty on the others is justified. He relied on the following decisions:- (1) Om Prakash Bhatia Vs CC Delhi 2003 (155) ELT 423 (SC) (2) Reliance Industries Ltd. Vs CCE Surat 2010 (261) ELT 273 (3) Sailash Amulakh Jogani Vs UOI 2009 (241) ELT 348 (Bom.) (4) CC, Bangalore Vs Vikram Jain 2009 (244) ELT 504 (Kar.) (5) Viraj Impo Expo Ltd. Vs CCE Thane-II 2006 (205) ELT 364 (Tri.-Mumbai) (6) Narinder Nagpal Vs CC Mumbai 2005 (192) ELT169 (Tri-Mumbai) 13. I have carefully considered the submissions of both sides and perused the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid by virtue of retrospective amendment and the appellant's objection on this issue is rejected. 17. I find that DRI officers had detained 53 items of various TV broadcasting equipments from the premises of main appellant i.e. Vijay TV on 29.12.98 as no valid documents were produced to prove that these are imported and duty paid. Out of these, 32 items were purchased by M/s.Vijay TV from the local dealers and others and the remaining items were taken on hire/lease/loan. The investigating officers had released 37 items to the appellants on production of valid documents showing licit nature of import. Out of 6 items, the items at Sl.No.11, 16 (i), 35, 37, 38, 39 and 41 were purchased by the appellants and the remaining items were procured on hire or lease basis. 18. The adjudicating authority has dealt the issue in detail on the 16 items at paras 13 to 20 of the impugned order. There is no dispute on the fact that all the impugned goods are of foreign origin are Audio/video recorder, sound mixing equipments etc. bearing the brands of SONY, PANASONIC, HITACHI, SPIRIT, FOLIO etc. The appellants strongly contended that the impugned goods are purchased from the local dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Shekih Mohd. Omer v. Collector of Customs, Calcutta and Others [(1970) 2 SCC 728] wherein it was contended that the expression prohibition used in Section 111(d) must be considered as a total prohibition and that the expression does not bring wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese are costly equipments meant for specific use in production studios and in broadcasting purposes. It is surprising to note that the appellants failed to ascertain the genuineness of the licit import of these equipments before entering into purchase/hire/lease with the local dealers. On perusal of records, and the investigations, I find that the department has carried out extensive verification and elaborate investigations on each and every transaction based on the purchase documents/bills produced by the appellants. In order to understand the magnitude of trail /investigation done by the department, flow chart of sequences of investigation and the result thereon in respect of the selected items are illustrated as under :- (i) Item 16 (i) - Spirit Folio Audio Mixer (a) Appellant procured from (Rs. 53,000/-) (b) M/s.Elixer Electronics, Chennai (Invoice 3554/13.1.08) (further investigation led to) (c) Purchased from Modern Radio house, Mumbai (Further investigation by DRI led to) (d) Purchased from M/s.Usha Electronics, Mumbai (Further investigation by DRI) Usha Electronics not responded. (ii) Item 37- Sony Umatic Player - VO 9800P (Rs.2,77,300) Item 38-S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act is to ensure that the goods which are brought into the territory of India if susceptible to tax under the Act are to be paid by such persons who brings the goods and if the same is not brought under any valid documents were to be noticed by authorities then they would be liable for confiscation under Section 111 though not prohibited goods under Section 123 of the Act. It is not dutiable goods or prohibited goods found at any place which can be confiscated by the authorities but all such goods when found that they are dutiable and have not suffered custom duty, the burden of proving that the goods has suffered duty or the duty has been paid on the goods is on the person from whom it is sought to be seized by the Department. It cannot be said by universal application chat the Departmental Authorities are required to prove with mathematical precision that goods are smuggled or has not suffered the Customs duty since it is on the basis of suspicion that authorities act in order to prevent the leakage of the revenue. When the action of the authorities are viewed from this angle it is to be examined as to whether the authorities have given full opportunity to the person from whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving fully known that the goods are of foreign origin and they cannot claim ignorance that they have bonafide belief that these goods are validly imported and sold to them. The very nature of items which are Video Mixers, Audio Mixers and other equipments has proved and in few cases the ultimate trail led to its source from local Burma Bazaar or from other persons whose identity is not known or no valid import documents was furnished. Various case laws relied by all the appellants are distinguishable and not applicable to the facts of the present case. The Tribunal decision relied by the appellant in the case of M/s. Ameet Industrial Corpn. (supra) is in favour of the Department, wherein the Tribunal by relying the Apex Court decision upheld the confiscation of the goods. Therefore, by respectfully following the Hon ble Apex Court's order and the Hon ble High Court decision discussed above the appellants' contention that the burden of proof is not discharged by the department is not maintainable as the department has sufficiently discharged the proof. Accordingly, I hold that the goods are liable for confiscation and the adjudicating authority has rightly ordered for confis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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