TMI Blog2022 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... were resumed by Revenue officers of DRI on 19.12.2007 about a month before the search by the Customs (Preventive). Thus, as the documents were lying with the Department, the appellant could not produce all the documents in support of his contention. The Court below have erred in not referring to the resumed records lying with them. The goods being not notified goods under Section 123 of the Act, it was onus on the Revenue to establish the smuggled nature of the goods, which the Revenue have miserably failed. Not a single evidence was produced by Revenue in support of allegation of smuggling save and except bald allegation. The allegation made by Revenue as regards violation of the provisions of the SWM Act read with the Rules is bad and wholly without jurisdiction. As in the facts of the present case, the jurisdiction to inspect, search and seize the goods in the open market, was with the Director appointed under the SWM Act. The Customs officers can exercise the jurisdiction under the provisions of SWM Act and the Rules thereunder, only in the Customs area - the impugned order is bad and suffers from the vice of violation of principles of natural justice - Revenue has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of purchase of imported goods, he stated that he has been mainly procuring the goods from Mr. Sushil Agarwal, owner of M/s. Ashish Panchal, Ahmedabad, who normally sent the goods without challans/invoices. That Rs.14,10,990/- of Indian currency recovered from his shop was the sale proceeds of his shop. He also stated that about 80% of his turnover was in imported goods and 20% in Indian goods. That the imported goods used to come from Bombay through ABC Transport as well as from Ahmedabad. The office of ABC Transport is located at Chabi Ganj, Kashmere Gate, he usually gets the builty/RRs by post on the basis of which, he gets delivery. He makes the payment in cash through Shri Kalpesh Angaria, who was located at Cloth Market, near Novelty Cinema, Delhi. 3. That Revenue in follow-up action, searched the premises of Shri Ashish Panchal at Ahmedabad vide a Panchnama dated 8.1.2008, wherein nothing incriminating pertaining to this appellant was found. Shri Ashish Panchal in his statement recorded on 16.1.2008 stated that he had been working with M/s. Chinmay Corporation at Ahmedabad as clerk, from Jan. 2007 to October, 2007. The said firm was engaged in import of music syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Kalpesh Angaria at Delhi. He reiterated that he deals in sales purchase of Indian make goods. Further, that the goods of Indian origin was purchased from M/s. M.R. Electronics Corporation, New Delhi, M/s. Royal Electronics, Shalimar Industrial Area, Delhi and some other firms. That the goods of foreign origin was purchased from M/s Tokyo Sale Corporation, Kashmere Gate, Delhi, M/s. M.R. Electronics Corporation, Delhi, M/s. Morata India (P) Ltd., Delhi, M/s. Carrion Communication (P) Ltd., New Delhi and M/s. Sriram Corporation, Kashmere Gate, Delhi. Further, stated that he was not having documents of purchase as the same have been resumed by the officers of DRI in their earlier search. 7. In his further statement recorded on 20.03.2008, the appellant, inter alia, stated that he did not know whether the details i.e. name and address of importer, month of import, quantity of goods, name of commodity, were mentioned on the package or on the labels. That he did not affix or remove any label or details printed on the cartons and he used to sell the goods to its buyer as it was. Further, on seeing 17 photocopies of invoices submitted by him along with letter dated 29.02.2008, he co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not possible to reveal, which of the invoices were issued to M/s.Music Palace. Further, admitted that Music Palace was purchasing imported goods from them. Further, stated that invoice KV mentioned in the invoice stands for brand KARVOX. Further, stated that the goods/packages sold by them did not bear declaration regarding MRP except brand name, name of commodity, modal no., which were printed on the packages. 9.3 Shri Subhash Checker, Proprietor of M/s.Royal Electronic, New Delhi, inter alia, stated that they are engaged in the manufacture of the goods like speakers, amplifiers, etc. and his turnover was below the exemption limit for central excise. Further, admitted that they have supplied the goods to the appellant vide several invoices including invoice no.194 dated 2.1.2008 and 196 dated 3.1.2008. Such goods were of Indian origin. They have never imported any goods and are registered owner of the brand JVL . 9.4 M/s. Morata India (P) Ltd., Prashant Vihar, Delhi - Shri Rakesh Kumar Gupta, Director in his statement stated that they were not importers and were dealing in sale and purchase of TFT/LCD monitor, 14 TV etc.. On seeing invoice no.019 dated 25.12.2007, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under Section 111(d) of the Act. 12. Accordingly, show cause notice dated 3.7.2008 was issued by the Commissioner of Customs (Preventive) alleging that the goods found in the shops/godown valued at Rs.92,73,350/- appeared to be smuggled in contravention of the various restrictions/prohibitions imposed on the import, thereof as the seized goods were found not bearing the declaration including MRP as required in General Notes to the Foreign Trade Policy, under which Customs Act read with SWM Act and the Rules thereunder and hence, the goods are liable to confiscation under Section 111(d) of the Customs Act, 1962. Indian currency of Rs.14,10,900/- seized from shop are liable to confiscation under Section 121 of the Customs Act, 1962. Further, penalty under Section 112 was imposed on M/s.ABC Transport Company and also on the appellant. Shri Satinder Singh Chug, Proprietor of M/s. Chug Transport Co. was also penalized under Section 112 of the Customs Act, 1962. 13. Being aggrieved with the order-in-original passed by Commissioner of Customs (Preventive), the appellant/assessee is in appeal against order of confiscation and penalty and the Revenue is in cross appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity before the Court of Metropolitan Magistrate on 11.04.2008, when the appellant was produced before the Magistrate pursuant to the arrest. 15. Ld. Counsel further urges that so far the allegation of non-compliance of the provisions of Standard Weight Measures Act, 1976 is concerned, read with the Packaged Commodity Rules, in the facts of the present case, where the goods are in town, the officers of Customs have no jurisdiction. The jurisdiction of the officers of the Customs with respect to the compliance of the SWM Act read with the Rules, lies within the Customs Area in case of imported goods. So far the goods lying outside the Customs area in the domestic market is concerned, jurisdiction is vested on the Director, who is appointed by the Government under the provisions of Section 29 of SWM Act, 1976. The provisions of SWM Act are a complete code in itself. 16. Ld. Counsel further urges that the impugned order is bad and against the principles of natural justice as the investigator has become the judge in this case. The investigation including seizure and issue of show cause notice was done by the office of the Customs (Preventive), New Customs House, near IGI Air ..... X X X X Extracts X X X X X X X X Extracts X X X X
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