TMI Blog2020 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants to avail the opportunity that has been granted. It is not the case where no opportunity was granted for making representation against the show cause notice however appellant chose not to avail the same and appear before the adjudicating authority. In our view when sufficient opportunity has been granted by the adjudicating authority before making the order to noticees in the case, and noticee do not make use of those opportunity then the order cannot be said to be bad for the reason that it hit by vice of Natural Justice. There are no merits in any of the submissions made by and on behalf of the appellants. More so over there is no challenge by the importer to the confiscation of goods before us. As all the facts and evidences have been admitted by the appellants in their statements recorded under Section 108 of Customs Act, 1962 there are no merits in these appeals. Appeal dismissed - decided against appellant. - C/Cross/91134/2013, C/Cross/91135/2013, Custom Appeal No. 85756 of 2013, 85846 of 2013, 85847 of 2013, 85850 of 2013 - A/85653-85656/2020 - Dated:- 28-5-2020 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE MR. AJAY SHARMA, MEMBER (JUDICI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000/- (Rs Fifty Thousand only) 28. No penalty under Section 114A and 114AA of Customs Act, 1962. 1.2 When the matter was listed on 13.12.2019, the bench hearing the matter directed registry as follows Registry to tag Appeal No C/88405/2014 and C/88406/2014 and other connected appeals if any. The matter is adjourned to 28.01.2020. After that order registry has checked up and found no other appeal except these four appeals and cross objection pending in the case of the impugned order. Hence only these appeals and cross objections have been taken up for hearing and disposal. 2.1 Based on intelligence that certain persons were indulging in imports of Laminated Sheets and Plywoods by under declaring the weight and value and by making use of bogus IEC, four live consignment of M/s Saibaba Impex, M/s National Enterprises, M/s D S Enterprises M/s Peekay Enterprises were examined by officers of Director General Revenue Intelligence on 29.01.2009. The consignments on weighment were found to be in excess of the weight declared and hence seized under proper panchnama. 2.2 Detailed investigations were undertaken and it was observed that Shri Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oti Trading Co of Shri Manish Karia and Shri Vishal Dedhia against monthly salary. He is not concerned with the imports made in the name of IEC of M/s Vijay Impex held in his name. He had only obliged his employers by signing some papers and giving his personal documents like PAN Card, Ration Card and Photographs. He had absolutely no concern with the imports made in name of the M/s Vijay Impex. on 31.03.2009, Shri Clive Jude Gomes, that he is an employee in M/s Jyoti Trading Co of Shri Manish Karia and Shri Vishal Dedhia against monthly salary. He is not concerned with the imports made in the name of IEC of M/s Vallankini Enterprises held in his name.He had only obliged his employers by signing some papers and giving his personal documents like PAN Card, Ration Card and Photographs. He had absolutely no concern with the imports made. on 21.04.2009, Shri Rajender Singh Mann, admitted that M/s Shri Saibaba Impex is a proprietary concern in the name of his wife Ms Mona Kaur. He held power of attorney of the same and had lent his name and signature for the imports made by Shri Manish Karia in three consignments. He was absolutely not concerned with any of these imports. on 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Enterprises, M/s Shri Saibaba Impex, M/s Super Enterprises and Shri Suleiman Enterprises. He had lent these IEC s through Shri Sanjay Nissar to Shri Manish Karia against consideration of ₹ 3000/- per import container. He had not submitted any documents in relation to any of the imports made against these IEC s showing that he was not concerned with the imports made. He also has not been able to produce any other document such as book of accounts for sale and purchase of these goods, sale/ purchase invoices, sales tax and income tax returns etc,, which clearly show that the imports made in the name of these IEC were not made by him. 4.5 All the above statements and evidence available on record clearly bring out the role played by each of the noticee to the show cause in act of illegal importation of these goods of which some live consignments have been seized and confiscated. In the past Shri Manish Karia and Shri Vishal Dedhia had by following this modus operandi have imported nearly 200 such consignments as admitted by them. Clearly the evidences and statements show that- Entire scheme of illegal imports by misdeclaring the weight and value was masterminded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in, proceeding for imposing penalties. under Clause (8) of S.167 to which s. 178-A-does not apply, the, burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to. the contrary. But in appreciating its scope And the nature of the onus. cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathe- matical 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 nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the first part of the entry in the 3rd column of Clause (8) of s. 167, may not be the same as in proceedings when the imposition of the other kind of penalty under the second part of the entry is contemplated. We have already alluded to this aspect of the matter. It will be sufficient to 'reiterate that the penalty of confiscation is a penalty in rem which is enforced against the goods and the second kind of penalty is one in person am which is enforced against the person concerned in the smuggling of the goods. In the case of the former, therefore, it is not necessary for the Customs authorities to prove that any particular person is concerned with their illicit importation or exportation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling. The, propriety and legality of the Collector's impugned order had ;to be judged in the light of the above principles. ... These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, he was produced before the magistrate though no complaint was filed and was released on bail. He did not complain to the magistrate that Ex. P-4 statement was given under inducement, threat or duress. It was raised only subsequently making accusations against PW-5, the Inspector of Customs. Therefore, obviously it was only an afterthought. The High Court, therefore, rightly has not given any weight age to the same. It is true that the Magistrate has given various reasons for disbelieving the evidence of PW-3, the panch witness who had also, at one point of time, indulged in smuggling. It is unlikely that PW-3 would bring 200 gold biscuits of foreign marking and conceal them in the compound of the appellant without appellant's knowledge for safe custody. It is not his case that he had facilitated PW-3 in concealing them in his compound. The place of concealment of the contraband is also significant at this juncture. It is just near and visible from the window of his bed-room through which he or family members could always watch anyone frequenting the place where the contraband was concealed. This fact becomes more relevant when we consider that after concealment of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120-B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of the offences committed under the Act has consistently been adopting the considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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