TMI Blog2022 (11) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... s the appellants have produced in support of the goods lying in his godown, have confirmed supply of goods against those invoices, although there are minor distortion in the statements. In view of the documentary evidence, oral evidence have got less weight and documentary evidence being more reliable cannot be ignored. As the appellant admittedly is not the importer, as defined under the provisions of the Customs Act, the impugned order confiscating the goods and demanding duty is bad in law and on facts. The impugned order is also bad for violation of the provisions of Section 138 B of the Act, which requires that the Adjudicating Authority is required to examine and offer for cross examination of the witnesses of the Revenue, which have not been done by the court below. There is no evidence that this appellant has financed the imports made by other importers/traders - the show cause notice is vague, as valuation of the goods has been done by the Revenue without any relied upon documents (copy of any retrieved documents from mobile /CPU of the appellant). Evidently, no panchnama was drawn by Revenue for retrieval of data or documents from the CPU/mobile of the appellant - reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , states that he was adding 5% margin on the goods. Further states that in some cases, he was not aware of the actual price of the goods and such goods were directly purchased by the buyers in India and he facilitates for the import and delivery. He also states that Atul Dhawan of Atul Traders (appellant) was mainly a buyer of lens, whom he knew through one Mr. Arora of Arora Opticals. 4. Thereafter, follow-up search was made in the premises of this appellant and certain documents /mobile phones (Samsung DUOS Model GT-19082) and one CPU (Make Odyssey) were seized for further investigation. The stock found in the godown valued at Rs.2,13,56,690/- was also detained alleging non-production of register at the time of search. Statement of Shri Atul Dhawan was recorded, who, inter alia, stated that he was engaged in trading of optical frames and glasses and optical accessories and was registered with Sales Tax and also had IEC No.0595005454; that he had made last import in the month of July, 2013 and also stated that for procurement of goods, he also visited China to select the goods from the manufacturers as well as to inquire the rates. Thereafter, he places the orders for purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted illegally in the country and which was the stock found in the possession of M/s. Atul Traders on 11.11.2014. (ii) No stock register has been maintained by M/s. Atul Traders as per statement of his chartered accountant i.e. Dinesh Kumar Gupta, it appears that the said goods were either being purchased without bill or in other words unaccounted means or illegal imports. (iii) All suppliers of M/s. Atul Traders as attributed in his stock statement dated 07.01.2015, has declined that they had supplied the specific types of lenses which were attributed to them in his stock statement submitted to Customs preventive. (iv) The investigations revealed that M/s. Atul Traders had illegally procured the goods detained on 11.11.2014 at his shop i.e. M/s. Atul Traders, 6434, Katra Balyan, Fetehpuri, Delhi for which invoices furnished by him were found to be manipulated and suppliers had denied having supplied the goods, as claimed by Atul Traders in his stock statement, and which was admitted by him in his statement under Section 108 of the Customs Act, 1962 subsequently, and the value of same is required to be determined at Rs.1,12,49,769/- (Rupees One Crore Twelve lakhs forty nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 112 of the Act. Further, penalty of Rs.24,50,416/- was imposed on Mr. Atul Dhawan, Proprietor under Section 114AA of the Customs Act. 9. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), inter alia, on the grounds that 9.1 That duty has been wrongly demanded as the appellant is not the importer but only a trader, who buys or procures the goods from the local market as well as from the importer, who had imported the said goods. Admittedly, the appellant have not filed the bill of entry nor placed any order to the foreign buyer nor made any payment to any overseas supplier. Further, it is not the case of the Revenue that the importers, from whom the appellant purchased the goods, were dummy importers and imports made by them have been financed by the appellant. None of the suppliers/importers have stated so in their statements recorded by the Revenue. The duty demand is wholly on assumptions and presumptions basis treating the appellant as importer, which is not sustainable. Reliance is placed on the following case laws:- J.B. Trading Corporation Vs. Union of India -1990 (45) ELT 9 (Madras). Chaudhary International Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded by Revenue in its office on their computer and the appellant have signed bonafidely on the dotted line. 9.10 It is urged that an admission is not conclusive to the truth of the matter stated therein. It is only a piece of evidence, weight is to be attached to the matter depending on the circumstances, under which statement is made. 9.11 Further, Revenue has erred in disbelieving the proper invoices and bills produced by the appellant in support of the stock, merely relying on the statement. 9.12 It is also urged that one of the suppliers of the appellant, Shri Vivek Kumar Bansal, Proprietor of M/s. Dee Vee Posters in his statement recorded on 1.5.2015 that he did not supply any goods to the appellant. In his subsequent statement dated 24.08.2015, Mr. Vivek Bansal stated that he had supplied optical frames and other goods to the appellant along with invoices during the period July 2014 to October, 2014. Thus, the statement of Vivek Bansal is contrary and self-contradictory. 9.13 Though Mr. Vivek Bansal has stated that he came to know the appellant through his CHA, Mr. Adil, but no statement of Mr. Adil was recorded to confirm this contention. 9.14 Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice is silent as to under which Rule or method, the goods have been re-valued. As the appellant is not the importer and have purchased the goods from the open market in India, the order of confiscation under Section 111(m) of the Act is bad. Section 111(m) provides for that the goods brought from a place outside India shall be liable to confiscation, if any goods, which do not correspond in respect of value or in any other particular, with respect to the entry (bill of entry) made under this Act. Thus, Section 111(m) only applies to the imported goods, which have been defined in Section 2(25) of the Act as import goods mean any goods brought into India from a place outside but does not include goods, which have been cleared for home consumption. Thus, in respect of the goods under dispute, admittedly, found and seized from the godown located in town of the appellant, are not the imported goods and thus, the provisions of Section 111(m) are not attracted on this appellant. 9.17 It is also urged that the adjudication order of confiscation, duty and penalties is bad as the show cause notice is vague for the reasons that it does not mention, under which part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d imported glass lenses (finished lens/Rough Ophthalmic blanks) and Flints Buttons (used in making of Bi-Focal Glass) vide bill of entry mentioned against each invoice and had supplied the same to the appellant. Other suppliers also had tendered similar statements. Thus, it leaves no doubt that the goods have been imported by others/suppliers of the appellant. 13. It is urged that the appellant is a trader, who procures goods from the local market from the importers/traders. Under the provisions of the Customs Act, Customs duty is levied on the imported goods, and such duty is liable to be paid by the importers. Admittedly, the appellant is not the importer as he has neither filed the bill of entry nor held out himself to be an importer with respect to any goods prior to issue of out of charge by the Department. Admittedly, the appellant have not placed the purchase orders with the foreign suppliers neither made any payment for the alleged imports to such foreign suppliers. There is no illegality in identifying the goods to be imported from a source located outside India, and thereafter sourcing the goods through the regular importer. Admittedly, the appellant have not filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments (copy of any retrieved documents from mobile /CPU of the appellant). 17. Further, re-valuation done on the basis of the statements is bad in law and on facts. That the appellant cannot be held as importer as the appellant have identified the particular goods available with the particular manufacturer/supplier available in the foreign country and thereafter, purchased the goods by placing orders with the importers located in India. 18. Evidently, no panchnama was drawn by Revenue for retrieval of data or documents from the CPU/mobile of the appellant. I find that reliance placed by Revenue on the statement of Mr. Vivek Kumar Bansal, Proprietor of M/s. Dee Vee Posters is bad on facts as the statements are self-contradictory. I further find that Revenue has not brought any evidence on record to allege that the goods found and seized in the premises of the appellant are smuggled goods. It is onus of the Revenue to give evidence for allegation that the goods are smuggled in nature. The appellant have stated before the officer that he deals with imported goods and also Indian goods, but the goods were arbitrarily seized under Panchnama without recording reasons as to how t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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