9911796707
TMI Blog1988 (3) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was issued to the appellant alleging among other things that Items at Sl. Nos. 6, 7, 15, 17, 19 to 34 and 39 to 47 of Annexure II to the panchanama (items seized from the shop premises) and Sl. Nos. 1 to 8, 16,17, 25 to 31 and 33 to 36, 53 and 79 to 137 in Annexure III to the show cause notice (items seized from the residential premises) were the goods notified under Section 123 of the Customs Act. It was further alleged in the show cause notice that the goods at Sl. Nos. 1, 6 to 9, 15, 17, 19 to 34 and 39 to 47 in Annexure II and the goods at Sl. Nos. 1 to 17, 21, 25 to 36, 53, 57 to 61, 64, 65 and 79 to 137 in Annexure III to the show cause notice are notified goods under Section 11 (B) of the Customs Act. It was then stated in the show cause notice that in relation to the above mentioned goods the appellant had contravened the provisions of Sections 11 C, (D) and (E) of the Customs Act and therefore, they became liable to confiscation under Section 11 (p). It was also stated in the show cause notice as to why the goods listed in Annexures II and III to the show cause notice should not be confiscated under Section 111 (d) and (p) of the Customs Act and why penalty should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of the provisions of the Customs Act in relation to each and every item. (6) The adjudicating authority was unjustified in not relying on the affidavits produced; and (7) Most of the items found in the residence were in single pieces which were normally found in the houses and were freely available in the open market and therefore, he urged that the confiscation of the goods ordered to be confiscated may be set aside. He, further contended that there was no justification what-so-ever to impose a penalty of Rs. 5000/- or any amount on the appellant. He, therefore, prayed that the entire order of the Additional Collector may be set aside. The goods confiscated may be ordered to be released and the penalty may be set aside. 6. Shri Prabhu, on the other hand, supported the order passed by the Additional Collector. He contended that admittedly, goods of foreign origin were found in the shop premises of the appellant. The goods so found were not only notified under Section 11 (B) but some of them were also notified under Section 123 of the Customs Act. In respect of the goods notified under Section 123, the burden will be on the appellant to establish that they were lici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , possessing or controlling the notified goods is required to deliver to the proper officer a statement in relation to the notified goods owned, possessed or controlled by him as well as the place where such goods are kept or stored. This statement is required to be in the prescribed form and in the prescribed manner. Admittedly, such a statement had not been furnished by the appellant. Under Section 11 E a person owning, possessing and having control of the notified goods is required to maintain a true and complete account of such goods. This account is required to be maintained in the prescribed form and in the prescribed manner. Admittedly, no such accounts had been maintained. The defence was that although they were notified goods they were not intended for sale and were not exhibited for sale. This defence is rather difficult to accept. It is not clear as to why the goods should have been kept in the shop alongwith the goods which were admittedly meant for sale, if they were not for sale and not intended for sale. In any case, the appellant had stated that those goods were kept along with other Indian Goods as they were meant for hypothecation against loan which he intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Out of the seized items, most of them were in single piece. In the panchanama the make and the model were not given in respect of several items. Out of the big list the costliest items are - (1) National Panasonic two-in-one 18 cm. speaker Radio cassette recorder - Model No. RQ 548 DS made in Japan valued at Rs. 2,500/-. (2) Rado gent s watch Swiss made valued at Rs. 1,500/-; (3) Casio Fx-31 Scientific calculator made in Japan with leather case without cell kept in cardboard box quantity 3 valued at Rs. 1,500/-; and (4) Fancy telephone set of golden colour made in Japan valued at Rs. 800/-. 13. In his statement the appellant had stated that the National tape recorder was purchased by him for Rs. 300/- at Cairo in November, 1980 and he did not pay any duty on it and do not have any documents in support of the legal import. But so far as the National Panasonic Radio Cassette Recorder was concerned, the appellant had stated that he had purchased the same from one unknown Malbari person for Rs. 1500/- at Bombay in 1976. He however stated that he does not have any receipt or documents to show that it has been cleared by the Customs. The rest of the items, according to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by Section 11(E) and Section 123 of the C.A. 1962 as indicated above stands conclusively proved. 14. The Additional Collector was right in holding that provisions of Section 11 D are applicable to the goods covered by Clauses (a) and (b) of Section 11G(i). But then, the Additional Collector failed to consider the Clause (b) of Section 11D(i). It was the contention of the appellant that the Items 3 to 143 in Schedule 3 of the panchanama were brought by him and his family members during their visits abroad. They were cleared under free allowances. He had also produced baggage receipts which no doubt the Additional Collector had considered. Their visits abroad had not been doubted by the Additional Collector. They were also entitled to free allowances had also not been questioned by the Additional Collector. It was not the case of the department that receipts should be given by the Customs in respect of the goods cleared under free allowances. In law and as per the Customs regulation, persons bringing goods within the limits of free allowance are not required to make any declaration and they are not required to obtain any Customs receipts. They are allowing to walk through Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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