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2016 (5) TMI 600 - CESTAT ALLAHABAD

2016 (5) TMI 600 - CESTAT ALLAHABAD - 2016 (336) E.L.T. 536 (Tri. - All.) - Confiscation of goods and imposition of penalty - Section 112 of the Act - Import of mobile phones of different brands, both Indian and Chinese - Mobile phones detained from the shop premises of appellant are smuggled and not legally imported as per revenue. - Held that:- it is found that this is a new case being made out by the revenue at this stage, that the revenue had verified the documents, like bill of entry p .....

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is no error in the findings of the ld. Commissioner (Appeals)and accordingly, the impugned order is upheld. - Decided against the revenue - Cus. Appeal Nos.60767,60768/13 - Final Order Nos. A/70107-70108/2016-SM, - Dated:- 26-10-2015 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri Vikram Kaushik, A.C. (A.R.) For the Respondent : Ms.Surabhi Sinha, Adv. ORDER PER MR. ANIL CHOUDHARY : The revenue is in appeal against order in appeal Nos. 10-11/CUS/ALLD/2013 dated 30.08.2013 passe .....

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ere being transported. On questioning the persons in occupation of the goods & vehicle they could not produce valid documents regarding the licit purchase or import of the Chinese and Indian origin goods in question. In the course of investigation the premises of the respondent assessee M/s Naeem & Sons Electronics Pvt. Ltd. and Vodafone was searched by the revenue on 25.7.11. In the course of search, mobile phones of different models of G-FIVE and Tintel Brand-Chinese Mobile Phone were .....

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f M/s. R. V. Solutions in his statement recorded under section 108 certified the documents that is the invoice dated 16/7/11, copy of bill of entry number 3710200 and 3920477 filed and assessed in the Customs House at Gorakhpur, along with the letter in support of the said transaction. Further the bill of entry so submitted, was sent to Additional Commissioner (Import) new Custom House, IGI Airport, New Delhi for verification. As per report of the concerned Asstt. Commissioner, the bill of entry .....

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lating to bill of entry number 2557041 dated 10/1/11. In the subsequent investigation of the bills of entry as stated, it is admitted by Revenue that the same was found in order. However, it appeared to revenue that the mobile phones detained from the shop premises of Naeem & Sons Electronics Pvt. Ltd. are smuggled and not legally imported and accordingly the respondents were required to show cause vide SCN dated 18.1.2012 as to why the goods found and detained valued at ₹ 14,31,830/- .....

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further was no penalty of ₹ 2,50,000/- each under section 112 of the act was imposed on the Directors namely, Shri Naeem Ahmad & Shri Arshad. Further penalty of ₹ 5.00 lakhs was imposed under section 112 on the company, M/s Naeem & Sons Electronics Pvt. Ltd. and ₹ 2,50,000/- each on Naeem Ahmed and Arshad Naeem, Respondents herein. 5. Being aggrieved the Respondents preferred an appeal before the ld. Commissioner, who vide the impugned order, has held that the appellant .....

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held that burden of proof in the facts and circumstances, that the goods are smuggled, lies is on the revenue and further that the revenue have failed to discharge the onus in the facts and circumstances. Accordingly, the order-in-original for confiscation and penalty was set aside and the appeal is allowed in favour of the present respondents and their company, that is, M/s Naeem & Sons Electronics Pvt. Ltd. 6. Being aggrieved the revenue is in appeal before this Tribunal on the ground tha .....

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on 23.7.11 (from vehicle) the ld. Commissioner (Appeals) erred in accepting the goods in search on 25.7.11 at shop premises of M/s Naeem & Sons Electronics Pvt. Ltd., on the ground that the imported Chinese mobile phone sets which were detained had been affixed with stickers as required under notification number 44(RE-2000) 19972002 dated 24/11/2000 issued under Section 5 of Foreign Trade (Development and Regulation) Act, 1992, wherein the labels indicated imported in March 2011 along with .....

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entry produced by the sellers of the respondents, wherein the import documents verified by the revenue and found to be correct. In absence of any adverse observation in the show cause notice that the goods in question do not relate to the import documents produced in the course of investigation, no new case can be made out before the Tribunal in the second appeal. Further, I find from the impugned order that the ld. Commissioner (Appeals) has dealt with the issue in detail and recorded the foll .....

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packets, therefore, it appears that the mobiles were illegally imported. All the model of detained tintel Chinese Mobiles sets were perused then it was found that the name of importer company of these mobile sets, was printed as M/s R. V. Solution Pvt. Ltd., Karolbag, New Delhi and the year and month was printed as March, 2011. M/s Naeem and Sons Pvt. Ltd. presented the invoice issued by M/s R.V.Solutions Pvt. Ltd. that belongs to June, 2011. It appears from this that the bill of entry and invo .....

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d to be correct. Officers of both the Company appeared before the Customs Officers and have admitted that Chinese Mobile are purchased by M/s Naeem & Sons Electronics Pvt. Ltd. from their firm and the bills which were produced are correct. Both Companies have admitted that their companies import mobile from China. Export-import work/business is not carried out by the appellant s firm. Appellant s firm purchase goods from importers located at Delhi and Lucknow and sell the same from his compa .....

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affixed by the factory in China. The above mobiles have been manufactured in March,2011 and the same have been imported in India in June, 2011. Whereas according to the seizure list, Tintel TI-295 pieces, tingtel T2-296 pieces, tintel T-5-81 pieces, tintel T06-77 pieces were recovered. As per the bills produced by the appellant 1500 pieces of tintel,T1, 1000 pieces of tintal T2, 200 pieces of tintel T3, 200 pieces of tintel T5 and 200 pieces of tintel T6 were purchased. All these goods were purc .....

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y and invoice issued to the appellant are of different months, therefore, confiscated mobiles do not pertain with the said invoice is not sustainable in the eyes of law, accordingly, its confiscation is against law and the same is liable to be set aside. I find force in the submission of appellant as this is a prevalent practice in every trade, further if there was any problems regarding the models then the investigation officers should have asked clarifications from the owner of M/s Praneet Ele .....

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ecovered mobiles when not validly imported, or the rules prescribed by law were not followed, in these circumstances, the total responsibility is on the importer but despite this allegation, no show-cause notice was given to importer company. This means that the import done by the importer company was deemed to be correct. I observed that there is no evidence against the appellants from which it is proved that aforesaid recovered all the mobile sets were smuggled, mobile phones are the articles .....

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In this case, the mobile phones and parts thereof of foreign origin are recovered from the appellant. It is not disputed by the Revenue that the goods are not notified under Section 123 of the Customs Act. In this situation, the onus is on Revenue to prove that the goods in question are smuggled goods in nature. Revenue has not produced any evidence to show that goods in question are smuggled into India. Even in the statement recorded by the revenue at the time of seizure, the appellant never a .....

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