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TMI Blog1991 (10) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... hi in presence of two independent witnesses. On search, goods of foreign origin, valued at Rs. 41,000/- as mentioned in panchnama/recovery memo dated 11-6-1986 were recovered. His wife, on demand, could not produce any valid proof showing valid import/acquisition/possession of the goods recovered on the spot and that she admitted that the seized goods had been brought into India by her husband in the month of April, 1986, for which documents showing customs duty were not available with her. Nor any such documents showing legal import were recovered during the course of search or even submitted at a later date by the appellants or his wife. The wife of the appellant, also revealed to the Preventive Officers that the seized goods had been advertised for sale in the said newspaper. The appellant was summoned for giving a statement by the Superintendent (Customs) Central Excise Office, Kanpur on 15-7-1986, 25-7-1986, 30-10-1986 but he did not turn up for that purpose. Therefore, the Asstt. Collector (Customs) on reasonable belief that the goods were of foreign origin, had been brought to India in contravention of the provisions of the Customs Act, issued a show cause notice dated 9-12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal), it is seen that 11 documents pertained to Medical treatment, the details of which are given in type; while Sl. Nos. 12 and 13 are inserted in ink which states Sl. Nos. 12 - Copy of payment voucher dated 23-9-1987; Sl. No. 13 copies of customs receipts for goods seized . These details at Sl. Nos. 12 and 13 are in dispute before me. The Appeal Memo gives all the details of medical treatment and speaks of certificates annexed in Annexure A in Sl. Nos. 1 to 11 in type. There is absolutely no mention of Sl. Nos. 12 and 13 or its details in the entire Appeal Memo. The appellant has not pleaded anything about Sl. Nos. 12 and 13 in his Appeal Memo before the Collector (Appeals). Sl. No. 12 is said to be payment voucher dated 23-9-1987 which copy is not placed before me. Sl. No. 13 refers to Customs receipt. The zerox copy produced before me refers to one baggage receipt E No. 138126 dated 7-7-1986 for payment of duty of Rs. 3,145/- by one Suche Nand Bajaj for Akai VCP. The appellant has produced before this Bench one zerox copy of certificate dated 18-5-1986 which reads as follows - Certified that the goods covered by the Baggage receipt No. SBI 138126 dated 7-2-1986 has been mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t relevant. The Sewing machine needles and ball bearings though neither covered under Section 123 of the Customs Act nor notified under Chapter IV-A, are items import of which takes place under some policy provision or the other. The case law therefore does not apply to the video cameras. The Andhra Pradesh High Court judgment with reference to seizure of playing cards cited inter alia says that mere possession of imported goods does not necessarily lead to an inference that goods themselves are imported in contravention of the provisions of Chapter IV of the Sea Customs Act, 1878 is also not relevant to this case for the reason that no evidence was forthcoming that the video camera was either cleared on payment of duty under the Baggage Rules or without payment of duty under provisions of the T.R. Rules, 1978. As regards omission to mention the sub-clauses of Sections 111 and 112 of the Customs Act by the original authority, I would consider it a deficiency in the order which would not vitiate the order itself. Under the circumstances, I reject the appeal and uphold the order of the original authority. The appeal is disposed of accordingly." 6. In this appeal the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence it has to be released as duty has been paid. He contended that video camera is not a notified item. He further contended that onus never shifts from the department and that onus of smuggling has not been discharged in the present case. The appellant has acquired the goods bona fidely and hence the proceedings required to be dropped and goods released. 8. Sh. G. Bhushan, learned SDR pointed out that the appellant had been shifting his stand. The appellant had not filed his reply to the show cause notice. His wife had stated that the appellant had brought the goods from Libya and this is confirmed by the appellant in his Memo of appeal before the Collector (Appeals). There was no mention of these baggage receipts in the Memo of appeal. The copy of Memo of Appeal now produced indicates that Sl. Nos. 12 and 13 have been inserted in ink in Annexure A to the Memo of Appeal which is all manipulation. The remand order was given as the Collector (A) had decided the case ex parte and the Bench had only directed to give the appellants an opportunity of hearing. He pointed out that Sl. No. 12 did not refer to Certificate of mortgage nor there was any mention in the Memo of appeal e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dy. Collector were ex parte and so also in the first instant before the Collector (Appeals). In the Memo of appeal in the statement of facts and grounds, the appellant has mentioned that he brought the goods from Libya. There is absolutely no mention that he had taken these goods on mortgage from Suche Nand Bajaj. Sl. Nos. 12 and 13 in Annexure A to Memo of Appeal, before the Collector (Appeals) also does not speak about this certificate but only about baggage receipt. The remand order of this Bench in A-397/89-NRB dated 27-9-1989 also does not refer to this certificate but only regarding documents produced with Memo of appeal. Therefore, as held by the Collector (Appeals) in the Impugned order, this certificate has appeared for the first time before him. Even in the Memo of Appeal before us in this appeal, the appellant does not categorically state about this transaction at all. He is silent about it but refers to two certificates and two baggage receipts of Bombay Airport Customs. The certificate has been produced before me at the time of hearing which has been extracted above. The original has not been produced. It is not stamped also and the typed name is Suche Nand Bazaz and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this point squarely applies to the facts of this case. 13. The video camera is not a notified item as has been noted by the learned Collector in his order. But the Collector (Appeals) has noted that no proof regarding its importation has been furnished and also held that it is neither claimed to be imported under free allowance on payment of duty under the Baggage Rules, 1978 nor under T.R. Rules, 1978 nor under other provisions. Therefore, the learned Collector has rightly distinguished the case law cited by the learned Counsel and I uphold the same. 14. The rulings noted by the learned Counsel is clearly distinguishable and not applicable to the facts and circumstances of this case. However, taking all the facts and circumstances of the case, I am of the view that instead of absolute confiscation, option for redemption on payment of fine can be granted. In the case of Balwinder Kaur v. Collector of Customs as reported in 1990 (45) E.L.T. 617(Tri.) the Tribunal had granted the release of VCR on payment of fine although on different sets of facts and circumstances. I, therefore, order for redemption of Akai VCP on payment of fine of Rs. 10,000/- (Rupees Ten thousands only) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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