9911796707
TMI Blog1991 (11) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... without valid licence the same was confiscated under Section 113(d) and (i) of the Customs Act, 1962. 2. The brief facts of the case are that the appellants entered for export, wood products which are processed or manufactured as per the shipping bill which is produced at page No. 50 of the Paper Book. The Department had information that the appellant is going to export the same by mis-declaring it. On examination, the Departmental Officers found the timber as not processed as declared in Bill of Entry. According to the Departmental officers, the subject goods would not be called as wood finished in the form which was sought to be exported. A Show Cause Notice was issued to the appellant and he replied the same. Personal hearing was gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods in question. In this connection, he drew my attention that a sample of the goods was drawn by the Departmental officers and the same was not at all tested in any Laboratories. It was his contention that in such proceedings the burden is on the Department to prove that the goods are confiscable. That burden cannot be discharged by a visual examination of the goods in question. In this connection, he relied on the following decisions :- (1) 1989 (42) E.L.T. 381 - Karendra Kumar Co. v. S.D. Shahapurkar; and (2) 1990 (49) E.L.T. 61 - Amar Dutta v. Collector of Customs. 6. He also pointed out that in the adjudication Order at Internal page No. 3 the learned Additional Collector has admitted the case of the appellant in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise Finished." Relying on the above-said observations, it was contended before me that what was exported was timber which was processed subsequent to sawing. Therefore, the confiscation of the same is not in order. He also contended that all these materials were furnished to the adjudicating Officer and he had passed the impugned Order without referring any of these materials which were produced before him. Shri Ashish Roy, therefore, contended that the confiscation of the goods in question merely on the visual examination is against the law. Shri Ashish Roy pointed out that these facts were mentioned in the Order-in-Original but they were not discussed while arriving at the finding. 9. He also contended that after the Impugned Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention that the processing means a series of operations employed in the manufacture of an article and it was for the appellant to have enlightened the adjudicating authority in this behalf. On the contrary, the appellant did not even insist for getting the material tested. He also stated that the adjudicating authority had examined the goods in question and found that the same does not appear to be a final finished product. In this connection, he drew my attention to the observations in the impugned Order. The Additional Collector has stated in the impugned Order that although the exporter claims that the goods in question have undergone sawing, kiln-seasoning, chemical impregnation and planing on all six sides visual inspection of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving benefit of doubt to the appellant does not arise in this case. Shri Biswas pointed out that the question in this case is whether the timber in question is processed or not. He, therefore, submitted that the same can be found out by a re-test or other valid evidence in this regard. With respect to similar goods as being exported, Shri M.N. Biswas, learned S.D.R. stated that each case was decided on its own merit and in those cases, the officers must have found the timber in question as processed ones and, therefore, they were allowed to be exported. Shri Biswas, learned S.D.R. also pointed out that the later test conducted by the appellant is not binding as the samples were not taken in the presence of the Customs nor it was done throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stated that the same is sawn timber. The argument of the learned S.D.R., Shri M.N. Biswas is that processing means several stages and those stages have to be undergone. But the best method to find out the same was to send the seized samples to the proper analyst to give his opinion, but the samples were not sent for analysis to find out as to whether the timber in question is sawn timber or processed timber. The appellant had claimed that this timber had undergone the stages of sawing, kiln-seasoning, chemical impregnation and planing on six sides but the learned Additional Collector did not believe this version of the appellant merely on the basis of his visual inspection. The relevant portion of the Order in this regard reads as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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