1991 (5) TMI 134 - AT - Customs

Issues Involved:
1. Confiscation of goods under Sections 111(d) & (p) of the Customs Act, 1962.
2. Imposition of penalties under Section 112(b)(i) of the Customs Act, 1962.
3. Legality of the seizure process.
4. Proprietorship and liability of M/s. Assam Studio.
5. Confiscability of old and used goods.
6. Applicability of Section 11G of the Customs Act, 1962.
7. Validity of inculpatory statements and their retraction.

Issue-wise Detailed Analysis:

1. Confiscation of goods under Sections 111(d) & (p) of the Customs Act, 1962:
The Additional Collector of Customs and Central Excise, Shillong, confiscated goods absolutely except those detailed in Annexure-IV (Part-II of the Seizure List). The confiscation was under Sections 111(d) & (p) of the Customs Act, 1962. The goods included foreign-made photographic films, camera cells, flash guns, and cameras. The appellant, Shri Bikash Shome, could not produce legal documents for the importation of these goods, leading to their seizure under Section 110 of the Customs Act, 1962.

2. Imposition of penalties under Section 112(b)(i) of the Customs Act, 1962:
Personal penalties were imposed on M/s. Assam Studio (Rs. 7,500), Shri Bidhan Chandra Dhar (Rs. 5,000), and Shri Bikash Shome (Rs. 5,000). The penalties were imposed for the illegal importation and possession of the goods. The appellants contended that the penalties were unjustified as the goods were either old, used, or procured in good faith.

3. Legality of the seizure process:
The search and seizure were conducted under Section 105 of the Customs Act, 1962, based on credible information. The seizure was justified as the appellant could not produce legal documents, and the goods were believed to be illegally imported. The appellant's contention that the seizure was not in accordance with law was dismissed as the seizure followed legal procedures.

4. Proprietorship and liability of M/s. Assam Studio:
The Tribunal examined whether the penalty on M/s. Assam Studio was justified. It was contended that Shri Bidhan Chandra Dhar was the proprietor, and a penalty on a proprietary firm was not justified. The Tribunal found that Shri Dhar was indeed the proprietor based on a Succession Certificate produced before the Tribunal. Consequently, the penalty on M/s. Assam Studio was set aside.

5. Confiscability of old and used goods:
The Tribunal assessed the confiscability of items listed in Part-II of the Seizure List, which included old and used cameras and other equipment. It was found that these goods were kept for professional use and were of low value. The Tribunal held that the confiscation and penalty were not justified as the goods were old and used, and their age was not determined.

6. Applicability of Section 11G of the Customs Act, 1962:
The Tribunal evaluated whether Section 11G, which exempts goods for personal use from confiscation, applied. It was contended that the goods were for professional use in the studio, not personal use. The Tribunal referred to a previous decision (1988 (37) E.L.T. 320) and concluded that the goods, although used professionally, were not liable for confiscation under Section 11G.

7. Validity of inculpatory statements and their retraction:
Shri Bikash Shome's inculpatory statements were examined. He admitted to purchasing and selling smuggled goods. The Tribunal considered the retraction of his statement, made several months later, as an afterthought and not credible. The Tribunal upheld the inculpatory statements and confirmed the confiscation of goods listed in Annexure-IV (Part-I) and the penalty on Shri Bikash Shome.

Conclusion:
The Tribunal set aside the penalty on M/s. Assam Studio and Shri Bidhan Chandra Dhar. The confiscation of goods in Annexure-IV (Part-II) was also set aside. However, the confiscation of goods in Annexure-IV (Part-I) and the penalty on Shri Bikash Shome were confirmed. The appellants were given an option to redeem the confiscated goods on payment of a redemption fine of Rs. 5,000. The appeals were thus partly allowed.

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