TMI Blog2015 (11) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... e outside India, except in case of 11 containers. We see no reason to disbelieve the statement of the Counsel that the printout clearly indicates the present location of the containers. More so when the shipping line which deals with hundreds of containers would not be expected to manipulate the website records for a few containers for which demand of duty has been raised. We, therefore, accept the evidence provided by the learned Counsel. - when the appellant himself certifies these copies, there should be no reason to reject this evidence. It would be rather unfair to expect the appellant to get a certificate from various port authorities all over the world when Revenue has not proved that the evidence submitted is false. In this view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof to the satisfaction of the Assistant Commissioner and to pay the duty leviable thereon in the event of the importers failure to do so. This period of six months may be extended on sufficient cause being shown by the Assistant Commissioner for such further period, as he may deem fit. The said shipping line had executed Bonds in respect of the containers imported by them. The record of the containers imported and re-exported is maintained in a Key Register maintained by the Customs, which records the date of import as well as re-export. In the course of time, the appellant took over shipping line namely, M/s Orient Ship Agency Pvt. Ltd. and also took upon themselves all the liabilities including the undertaking given in terms of the Bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter data regarding status of container furnished by the appellant, it should be accepted as proof of export subject to verification that such container is lying outside India. There cannot be an illicit removal of container outside India as need for the same would not arise because on re-export there is no duty and in fact the re-export will save the appellant from consequence of paying duty. Even if it is presumed that the container has been sold to some other person, a re-export by him will also be valid as in the present case customs has recognised Mitsui OSK India as a person taking over the responsibility of export even though the imports have been made by Orient Shipping. Therefore, such secondary evidence should be considered. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held liable for confiscation. However, the quantum of redemption fine and penalty shall be redetermined in the remand proceedings taking into consideration the ultimate duty liability upheld and the number of containers held as being liable to confiscation. Appeal is partly allowed by way of remand. 2.2 It may seen from above that the matter was remanded to the adjudicating authority with specific directions to consider the secondary evidence of proof of re-export and to accept the evidence, the Commissioner in the impugned order held that the appellant have not disclosed from where the printout regarding the secondary evidence was taken, the source of evidence is also not known and that secondary evidence as per Section 63 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case is whether the documents submitted by the appellant indicating the location of the containers in various ports of the world should be accepted or not as proof of re-export. We find that CESTAT in its earlier order had given a finding that the secondary evidence produced by the appellant should be considered and also should be accepted. This order of the CESTAT was not challenged by the Revenue. The Commissioner in his order has rejected the evidence. We may, therefore, evaluate the evidence submitted by the appellant. 6.1 We find that the Commissioner made a bland statement that that the appellant has submitted the evidence in form of a computer printout showing the location of each container. The Commissioner has not made any ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, when the appellant himself certifies these copies, there should be no reason to reject this evidence. It would be rather unfair to expect the appellant to get a certificate from various port authorities all over the world when Revenue has not proved that the evidence submitted is false. In this view of the matter, we reject the finding of the Commissioner. 6.3 The learned Counsel admits that out of 72 containers, the location of 11 containers is not known to them and they fairly concede that they are ready to pay the redemption fine, duty and penalty proportionately. Therefore, we find it appropriate to remand the matter to the adjudicating authority. We have clearly held that secondary evidence submitted by the appellant is acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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