2022 (11) TMI 108 - AT - Customs

Levy of penalty - Chocolates and other eatables - smuggled goods or not - burden to prove - beyond reasonable doubt - preponderance of probabilities - whether the chocolates and other eatable that were stored in the godown of Appellant-I was to be considered as being stored with his full knowledge to establish conscious possession of the Appellant-I of those goods and if, at all those were none duty paid imported goods? HELD THAT - Going by the date of adjudication order confirming Customs duty proposed in excess of the declaration made by Appellant M/s. S.D. Enterprises, it was passed on 12.09.2017 and the same was invoiced for sale on 14.09.2017 that was being seized by the Customs Department on the same day and statement of Appellant-I was recorded on its next day. Therefore, there are no reason in disbelieving the Appellant-I s version that goods were kept in godown for last 3, 4 days since it must have been released between 12th September to 14th September and might have been brought to the Appellant s godown between 12th September to 14th September might be through a transit permit or challan. Further the godown is owned by both father and son having two separate proprietorship concern. Exclusive and conscious possession of the Appellant-I and prosecuting him for such possession as well as holding him responsible, so as to confirm demand of duty against him alone, is not sustainable in law since the other Appellant is not only claiming ownership of the goods and explaining his liability concerning local purchase by way of production of tax invoice issued by M/s. S.D. Enterprises, in whose favour the goods described in the tax invoice with many other items were also directed to be released through an adjudication order issued by the Assistant Commissioner of Customs just two days prior to seizer of the goods. It is immaterial also for the purpose of determination of the liability of Customs duty as to if the subsequent purchaser only knew the importer by name or if he had never seen the importer. Be that as it may, it is a settled principle of law that documentary evidence would outweigh oral evidence and exclusion of oral evidence by documentary evidence is well recognised in case of disposition of property under Section 91 of the Indian Evidence Act. The Appellants have succeeded in their appeal by substantiating payment of Customs duty on imported goods by way of production of the copy of the Adjudication order which were seized from them subsequent to the transfer effected through sale invoice. Adjudication order stands in the footing of a public document as per the Indian Evidence Act, 1872 that bears proof of importation of goods by the importer through Customs for which demanding duty again and imposing penalty on these Appellants is improper and unsustainable in law and facts. The orders to the extent of confirmation of Customs duty, interest on the Appellant No-I proprietorship firm and penalties at the reduced rate on both the Appellants with appropriation of sale proceeds of the imported goods through auction is hereby set aside with consequential relief - appeal allowed.

Summary

Issues:
Confirmation of duty, penalty, and interest under various sections of the Customs Act with modification of penalty at a reduced rate from Rs. 30 lakhs to Rs. 5 lakhs individually imposed on both Appellants.

Analysis:
1. Facts of the Case:
- 684 cartons of foreign origin chocolates and eatables were seized from a godown.
- Appellant-I owned duty liability on chocolates, while Appellant-II claimed ownership of the seized chocolates purchased from M/s. S.D. Enterprises.
- Statements of both Appellants were recorded, discrepancies noted, and a show-cause notice issued proposing duty, penalty, etc.
- Adjudication resulted in confirmation of duty demand, interest, and penalties, including a penalty of Rs. 30 lakhs on both Appellants under Section 114AA of the Customs Act.

2. Appellants' Arguments:
- Appellants argued discrepancies in statements, reliance on initial statements under pressure, and applicability of Section 114AA only to exports.
- They presented evidence linking the importer to the purchased goods and challenged the burden of proof on the Department.
- Cited judicial decisions to support their case and emphasized the duty payment on imported goods.

3. Respondent's Arguments:
- Department argued the manufactured nature of documents, non-existence of the importer, and improper importation of goods.
- Referred to the burden of proof standard and the special knowledge of the Appellants regarding imported goods.

4. Tribunal's Decision:
- Tribunal examined the conscious possession of goods by Appellant-I and the duty payment status.
- Found the Appellants' evidence of duty payment through an adjudication order and sale invoice to be substantial.
- Rejected the Department's arguments regarding non-existence of the importer and upheld the evidence presented by the Appellants.

5. Final Order:
- Both appeals were allowed, setting aside the confirmation of duty, interest, and penalties imposed by the Commissioner of Customs (Appeals).
- The order included the appropriation of sale proceeds of the imported goods through auction and provided consequential relief to the Appellants.

This detailed analysis highlights the key arguments, evidence, and the Tribunal's reasoning leading to the decision to allow the appeals and set aside the penalties imposed on the Appellants.