1992 (10) TMI 180 - AT - Customs

Summary

Issues Involved:

1. Legality of the order passed by the Additional Collector dropping proceedings under Section 112 of the Customs Act, 1962.
2. Credibility of the statements and retraction by Shri Jatinder Singh.
3. Validity of the seizure and the place of recovery of the wrist watches and table clocks.
4. Liability and penalty under Section 112(b) of the Customs Act, 1962 on Shri Kartar Singh and Shri Amarjit Singh.
5. Whether M/s. P.K. Brothers could be proceeded against under the order passed by the Board under Section 129D(1) of the Customs Act, 1962.

Detailed Analysis:

1. Legality of the Order Passed by the Additional Collector:

The Additional Collector ordered the absolute confiscation of the seized goods but dropped penal proceedings against M/s. P.K. Brothers, its proprietor Shri Kartar Singh, and his son Shri Amarjit Singh, citing the unreliability of Shri Jatinder Singh's statements due to his retraction. The Board, however, directed the Additional Collector to apply to the Appellate Tribunal for the imposition of penalties, deeming the order improper and illegal. The Tribunal found that the proceedings were initiated only against S/Shri Kartar Singh and Amarjit Singh, not M/s. P.K. Brothers, hence proceedings against M/s. P.K. Brothers could not be initiated under the Board's order.

2. Credibility of the Statements and Retraction by Shri Jatinder Singh:

Shri Jatinder Singh initially stated that the seized goods were recovered from the shelves of the main counter in the shop and confirmed this in a subsequent statement. However, he later retracted these statements in an affidavit, claiming the goods were in a bag given to him by a customer. The Tribunal found that the retraction was an afterthought and not credible, as it was produced belatedly and there was no indication of coercion in the initial statements.

3. Validity of the Seizure and the Place of Recovery:

The seizure memo and panchnama indicated the recovery of the goods from the shelves of the main counter in the shop. The Tribunal rejected the respondents' claim that the goods were recovered from a bag on the counter, noting that the panchnama and seizure memo, signed by independent witnesses, did not mention any bag. The Tribunal found no evidence of interpolation in the seizure memo and concluded that the goods were indeed recovered from the shelves of the counter.

4. Liability and Penalty under Section 112(b) of the Customs Act, 1962:

The Tribunal held that the seized wrist watches and timepieces were kept in the shelves of the counter in the respondents' shop, and the respondents failed to prove that the goods were not smuggled. Consequently, Shri Kartar Singh, as the sole proprietor, was liable for a penalty under Section 112(b) of the Customs Act, 1962. However, the Tribunal took a lenient view on Shri Amarjit Singh, who was in charge of the shop due to his father's illness, and refrained from imposing any penalty on him.

5. Whether M/s. P.K. Brothers Could Be Proceeded Against:

The Tribunal agreed with the respondents' contention that M/s. P.K. Brothers could not be proceeded against as they were neither served with a show cause notice nor was any order passed against them by the Additional Collector. Hence, the appeal was disposed of accordingly, and the cross-objection was rejected.

Conclusion:

The Tribunal set aside the Additional Collector's order dropping the charges against Shri Kartar Singh and imposed a penalty of Rs. 15,000 on him. No penalty was imposed on Shri Amarjit Singh, and M/s. P.K. Brothers could not be proceeded against under the Board's order. The appeal was disposed of in these terms, and the cross-objection was rejected.