TMI Blog2003 (7) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... fabrics/textiles from the premises of M/s. New India Agencies (NIA) on 31-7-99; that on 4-2-2000 a show cause notice was issued to the Appellant for confiscation of goods seized from Gulabi Bagh and imposition of penalty; that a show cause notice dated 27-1-2000 was issued to NIA and others for confiscation of goods seized on 31-7-99; that the Commissioner, under the impugned order confiscated the goods seized from Gulabi Bagh (except gent's coats and suits) with an option to redeem the same on payment of fine of Rs. 2 crores and imposed a penalty of Rs. 50 lakhs on the Appellants. 2.2He also mentioned that the Commissioner by another Order No. 87/2001, dated 27-11-2001 also confiscated goods seized from NIA and imposed a penalty of Rs. 10 lakhs on NIA and Rs. One lakh on Naresh Mittal, partner in M/s. Alpine Overseas; that on Appeal, the Appellate Tribunal has set aside the said Order vide Final Order Nos. C-II/215-216/2003-WZB, dated 3-2-2003 [2003 (160) E.L.T. 168 (T)]. 3.The learned Advocate, further submitted that all the goods seized both at Gulabi Bagh and Rohtak Road were imported by M/s. NIA and M/s. Alpine Overseas; that a part of these goods were purchased by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 135) E.L.T. 1036 (T) (ii) Rup Chand Jain v. CC (Prev.), Calcutta - 1996 (88) E.L.T. 335 (Cal.) (iii) Dhun Darbashaw Randeria v. CC (Prev.), Mumbai - 2001 (136) E.L.T. 1136 (T) wherein it has been held that "Even where the burden of proving licit importation is cast upon a person that burden cannot be discharged by him by tendering documentary evidence of importation of each single item. For such burden to be discharged it is generally sufficient for him to show that all such goods were importable, were available for sale, were sold and purchased and were acquired by him." (iv) Agha Khan v. C.C., Delhi - 2003 (159) E.L.T. 376 (T) = 2003 (107) E.C.R. 238 (T) 4.The learned Counsel also contended that merely because they could not produce the documents at the time of seizure, it does not mean that the goods are liable for confiscation; that subsequently the documents have been produced for effectively discharge of the burden cast upon them; that the absence of documents at the place of storage of the goods would not affect the validity of the import, more so when the provisions of Chapter IVA of the Customs Act are not applicable; that merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Shri V.K. Jain, in his statements recorded on the same day, stated that he did not have any bills with him or in his office and the same were with his accountant; that in his subsequent statement dated 9-8-1999, he admitted that he knew that part of the fabrics were imported by Shri Anil Mahajan and Naresh Mittal and remaining goods were procured by them clandestinely. The learned Senior Departmental Representative further submitted that one Vinay Kumar, Assistant of his accountant Shri Mahesh Kumar, produced only 29 invoices/bills and no other documents pertaining to the impugned goods; that it was found that the four bills were issued by different firms in Surat and the enquiries conducted at Surat revealed that three of the firms did not exist at the address mentioned and the remaining fourth firm had not sent any synthetic cloth to the Appellants; that 66 Bills of Entries were given to the Department after 1 ½ years of the search; that the Commissioner has given his specific finding in detail in the impugned order to the effect that "the Committee observed that no identification marks and numbers were found in any of the documents that were submitted for co-relation with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides. The Revenue's case is based on the arguments that the Appellants could not produce any document at the time of seizure of goods; Shri V.K. Jain admitted in his statement that part of the goods were smuggled by NIA and Alpine and the Committee's Report does not support the Appellant's case. We observe that Shri V.K. Jain, in his statement dated 30-7-99, has clearly deposed that he was purchasing fabrics locally and that the bills are lying with his Accountant Shri Mahesh. Said Mahesh Kumar in his statement recorded on 30-7-99, has deposed that the all purchases are made from NIA, Rohtak Road and M/s. Alpine Overseas. Anil Mahajan has admitted in his statement dated 2-8-99 that part of the goods imported by him had been sold to the Appellants and part of the goods was kept for storage in the Appellant's godown. The Department has not controverted these statements. The Appellants have given the source of procurement of the goods in question. It is also not the case of the Revenue, nor any material has been brought on record to show that the impugned goods were smuggled by the Appellants. There is also no rebuttal of the averment, by the Revenue, that the photocopies of the Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at the time of seizure cannot be advanced to support the contention that the impugned goods are smuggled one. 9.The Commissioner has also recorded his findings in the impugned Order that the Report of the Committee lends no support to the contention of the Appellant that the goods in question are covered under the documents produced by them as no identification marks and numbers were found and packing identification and width/sizes, etc., could not be co-related. We find that the said Report came up for consideration of the Tribunal in the case of Anil Mahajan and Naresh Mittal v. CC, New Delhi, Order No. C-II/215, 216/2003/WZB/2003, dated 3-2-2003 [2003 (160) E.L.T. 168 (T)]. The issue involved in this Appeal was whether the quantities of fabrics seized from the premises of New India Agencies are liable to confiscation as having been smuggled. This seizure of fabrics was also effected on 31-7-99 and the Appellant herein had purchased the impugned fabrics from the said NIA. 10.The Tribunal observed in the said decision that "on 6-8-99, he produced before the Court at Delhi copies of Bills of entry under which he claimed to have imported the goods ..... the emphasis placed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly showed total number of rolls or cartons. It is clear, therefore, that to the extent that any particulars existed that can be correlated, the committee has found the goods to be covered by the documents. It has found physical appearance, the nature and description of the fabrics to be the same as in the bills of entry and has found the width to tally wherever the width was given in the documents. The Commissioner has dismissed the finding with regard to the nature and description by saying that this finding itself could not lead to the conclusion that the goods were covered by the bills of entry. He has said incorrectly that the committee could not correlate the goods in regard to width "for the reason that this parameter in itself is quite vague and no definite opinion as to conformity followed". This is at variance with what the committee found, that wherever width was shown it is specifically or as a range in the bills of entry, the width of the fabric tallied. It would therefore not be correct to say that the documents did not tally in terms of the particulars with the goods, to the extent that they were tallied with these particulars. The Commissioner says that the most ..... X X X X Extracts X X X X X X X X Extracts X X X X
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