TMI Blog2023 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... same argument also applies to the goods which were seized under reasonable belief that they were substituted. Applying the observation by the original authority that it is not possible to identify diamonds whether the same are imported or substituted, we come to a conclusion that the seizure of diamonds under the allegation that they were substituted, was on a erroneous belief that they were substituted as such a belief cannot be established for the same reason which is given by the original authority. There are no merit in the seizure of 1095.43 carats of diamonds and subsequent proceedings in respect of the same including confiscation, imposition of redemption fine, demand of differential customs duty and imposition of penalty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of gold jewellery studded with diamonds. On 11.03.1998, on suspicion, the Customs Officer intercepted one auto rickshaw which was coming out from the warehouse gate of SEEPZ. One Shri Kamal Singh, employee of the appellant was found sitting in the said auto rickshaw and was carrying three plastic packets. On examination, it was found that the said packets were containing electronic goods. Therefore, under a panchanama the said electronic goods were seized. Further, an enquiry was conducted at the premises related to the appellant and various statements were recorded. Stock taking was done at the business premises of the appellant. It appeared to Revenue that 89.15 carats of diamonds which were imported were found short in the stock maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the matter was remanded for de novo adjudication. In the de novo adjudication, Order-in-Original was passed which was challenged before this Tribunal. This Tribunal vide its final order No. A/1595- 1600/2014/CSTB dated 24.09.2014 had taken note that the appellant had submitted evidence to the original authority by way of submitting copies of Bills of Entry under which they had imported the goods and also accounts which they had maintained in respect of imports as well as consumption thereof. This Tribunal has observed that the only ground of non-acceptance of such evidence by the original authority was that the connected documents were not attested. The said observation of original authority was not appreciated by this Tribunal for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of imported goods as well as the accountal of consumption of imported goods. However, these were not accepted by the adjudicating authority on the former occasion as they were held to be unauthenticated. Hence the specific direction for verification. 10. It is now clear from the impugned order that the records are not available for verification. However, the data document submitted by the appellant can be subject to computation for arriving at the stock of goods-in terms of cut, clarity, caratage - that should be available. That, at least, should have been attempted by the adjudicating authority before coming to its conclusion. The adjudicating authority could have afforded further opportunity to the appellant to substantiate, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged to be substituted to carry on the identification of the same on the basis of stock available with the Department under seizure and also to verify the records maintained by the Department as well as that by the appellant to ascertain whether allegation of substitution of diamonds was established through the evidence. The learned Counsel for the appellant has brought the attention of this Bench to para 11.2.1 of impugned order, wherein it has been held by the original authority as under: I also find that it is very difficult to identify whether diamonds available in stock were same in respect of stock procured in DTA by the noticee and even if the invoices are available it could not have held much as it does not have any marking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority. Therefore, we find no merit in the seizure of 1095.43 carats of diamonds and subsequent proceedings in respect of the same including confiscation, imposition of redemption fine, demand of differential customs duty and imposition of penalty on the appellants. Insofar as shortage of 89.15 carats of diamonds is concerned, the same is argued to be treated as processing loss. The prosecution has failed to establish any clandestine removal of the same and could identify the person to whom the same were allegedly sold or transferred. In view of the failure of the prosecution to establish any clandestine removal of 89.15 carats of diamonds, we hold them to be processing loss and since the same are not taken out of SEEPZ, i.e. out of B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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