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TMI Blog2008 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... udication. 2. I have heard both the sides at length. 3. The brief facts of the case are as follows (i) Certain goods were detained allegedly on 2nd/3rd December, 1999 by the Officers of Thane Municipal Corporation. There is no panchnama evidencing the detention of the goods on the said date, bearing signatures of the panchas and of the person from whose possession the same were seized. (ii) A panchnama dated 9th December, 1999, was drawn by the customs authorities for seizure of the aforesaid goods valued at Rs. 2,14.805/-. (iii) It was alleged that these detained goods were part of the consignment seized on 1st December, 1999 and taken over by C1U officers from "Lokmanya Tilak Terminus, Kurla" to "office of Marine & Preventive W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 112(a) & (b), (i) and (ii) of the Act. (viii) The appellants filed their replies to show cause notice. They were exonerated by the ld. Jt. Commissioner i.e. the adjudicating authority by a detailed order dated 29th Sep., 2006, and it was held mainly on facts that the appellants were not proved guilty. (ix) The Revenue challenged the Order-in-Original before the ld. Commissioner (Appeals). The Departmental Appeal was devoid of conclusion as to any illegality, impropriety or unreasonableness in the order-in-original and the only grievance apparent from Appeal is that the evidences were not appreciated to the satisfaction of Revenue. The Department in para 8 of their Appeal is relying on disciplinary authority proceedings. (x) How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considering and discussing the entire gamut of evidences relied by the department, by way of detailed order running into 83 pages. The appellants submitted that the impugned order-in-appeal needs to be set aside and the Order-in-original shall be upheld on this Ground alone. 5. The Appellants further submitted that admittedly for the goods seized under panchnama dated 1st December, 1999 a separate SCN has been issued to the said Shri Bismillah Khan. None of the Appellants herein are among the noticees in the said Show Cause Notice issued in relation to the goods taken over from Kurla, nor the said Shri Bismillah Khan is a noticee in the Show Cause Notice dated 31-5-2000 issued to the Appellants in respect of the impugned goods detained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon It was contended that in the instant case the I-Card register bearing photographs among other details was already shown to the witnesses before the Test Identification parade, and thus the same was meaningless and no reliance could be placed thereon. 8. The appellants also contended that the Adjudicating Authority has considered the entire gamut of evidence and assailed the veracity of the statements. Thereafter he has arrived at a just and proper conclusion based on the principles of preponderance of probability. 9. Thus, according to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barrier. Since the smuggled nature of the seized goods has not been established, therefore there cannot be any question of confiscation and consequent imposition of any penalty, whatsoever. Though the matter can be disposed of on this short point, the impugned order-in-appeal can be set aside and the order-in-original can be upheld, I feel it necessary to consider the issues raised by the appellants. 12. I find no bones in observing that the test identification parades conducted in the instant case were meaningless as the photographs of the appellants were already shown to the witnesses from the I-card registers. The observations of the Hon'ble Supreme Court in the case of N.J. Suraj (supra) are squarely applicable in the instant case. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spot panchnama drawn by Shri Saraf. The findings of the adjudicating authority are elaborate, legal and proper. The Revenue failed to show any averment directed to be considered by the Commissioner (Appeals), which was not already considered by the adjudicating authority. By not making Shri Bismillah a party in the Show Cause Notice issued in the instant case, the Revenue itself has distinguished the seized goods with the goods taken over from Kurla. I find that in teeth of the undisputed glaring inconsistencies recorded in para 6.3 of the impugned order-in-appeal by the ld. Commissioner (Appeals) himself, there was no reasonable ground available to him to set aside the order-in-original for de novo consideration. 16. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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