| SooperKanoon Citation | sooperkanoon.com/39787 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai |
| Decided On | Jul-22-2005 |
| Judge | S T S.S., T Anjaneylulu |
| Appellant | Marshil Exports |
| Respondent | Cc (Appeals) |
2. In the impugned Order-in-Appeal, it is found that the goods were imported with misdeclaration and under invoicing. In respect of the goods seized from the office premises the appellants failed to produce any legal Documents such as bills showing their purchase locally or importation after paying customs duty. The Commissioner (Appeals) did not find any merits in the contentions raised by the appellants except imposition of penalty on the appellants (proprietor) and the same been set aside.
3. The appellants above named were a proprietary concern of Mrs. Mona Lalwani. They are mainly engaged in the job work business for ladies embroidered garments for exports, for the manufacture of which they require both indigenous and imported items. The items, which have been imported generally, consists of glass beads, chattons, semi-precious stones, etc., and these imports are sometime effected by couriers under the Courier Imports (Clearance) Regulations, 1995. One such consignment was about to be cleared under DDR No. 743185 dated 13.07.96 on a Bill of Entry No. 743285 dated 13.07.96 filed by M/s. I.C.C. Worldwide Couriers, when the Customs authorities, on the basis of some intelligence, detained the same and reexamined the goods and took over under Panchnama dated 13.07.96 for the purpose of valuation and further investigation. They were valued at Rs. 51,839/- and the same was seized under Section 110 of the customs Act, 1962. The premises of the appellants were also searched and seized some goods from cupboard stored with crystals/fine beads and chattons and they were valued at Rs. 4,61,386/-.
4. The Customs authorities have recorded statements of one Shri Uday Janardhan Oza, representative off M/s. I.C.C. worldwide Couriers, and also statements of Mrs. Mona Lalwani under Section of the Customs Act.
Shri Uday Janardhan had shown no knowledge about the contents of the consignments. It is alleged by the customs authorities that M/s. I.C.C.worldwide Couriers filed bill of Entry showing under valuation of goods and the bill of Entry was in form No. IV instead of Form V, whereas Mrs. Mona Lalwani alleged to have admitted about under valuation and agreed for the valuation done by the Customs authorities.
5. It is seen that Mrs. Mona Lalwani through her letter dated 18.07.96 retracted her statement and shown no interest in claiming the goods.
6. The authorities concerned have adjudicated the show Cause Notice confirming the demand, confiscating the goods and imposing the penalties as stated supra.
7. (i) The appellants contend that in respect of the goods already adjudicated upon/released, show Cause Notice under Section 124 is not tenable and procedure under Section 129-D ought to have been followed Reliance is placed in the case of M/s. Informatika Software v.Collector of Customs (P), Calcutta, reported in 19778 (73) ECR 3348.
(ii) The authorized Courier had failed to file the Bill of Entry in Form V, the consignee like, the appellants herein, cannot be made responsible for this lapse, as it is not the responsibility of the consignee to file a Bill of Entry and make any declaration.
8. After going through the records and hearing the submissions made by both sides, it is found that there is any amount of force in the contentions raised by the ld. Counsel for the appellants. First of all, it is seen that Mrs. Mona Lalwani immediately retracted her statements.
It is not voluntary one. It is well settled position of law that retracted confession unless is corroborated In material particulars by any other independent evidence, it is not prudent to base a conviction on its strength alone- Ndukwe Onuohe v. Asst. Collector, 1998 (101) ELT 17 (Bom.).
9. That even if it is assumed that Mrs. Mona Lalwani agreed for the valuation, that did not mean to apply an arbitrary method in valuing the goods. The Department could not prove under-valuation by any evidence of contemporaneous imports 2000 (41) RLT 621 (SC) : 2000 (122) ELT 321 (SC) Eicher Tractors Ltd. v. Commissioner of Customs 10. The impugned order did not give any reasons in support of its findings - Siemens Engineering v. Union of India, 1976 SCI 785. The impugned Order suffers from non-application of mind.
11. It is well settled law that burden of proof lies on the Department to prove smuggled character of the goods. When the goods were neither notified nor specified under Section 123, the burden of proof of their non-smuggled character do not rest upon the appellants. The part of goods were locally purchased and the allegation made by the appellants is not rebutted by the Department. It is well settled law that goods purchased from the local market for valuable consideration must be considered as duty paid unless proved otherwise. The imported goods did not figure in any of the negative list of imports and as such their confiscation under Section 111 (d) is not valid.
12. It is an admitted position that 14 Bills of Entry were recovered during the search from the premises of the appellants, which shows that goods were imported legally. Therefore, they are not liable for confiscation. The question of misdeclaration by the appellants does not arise as the Bill of Entry was filed by the registered Courier.
13. In the light of the aforesaid discussion, the impugned order cannot be upheld. The Department has failed to establish the allegations leveled against the appellants. Consequently this appeal is allowed with consequential relief, if any. Order accordingly.