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TMI Blog1992 (2) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... port Control Restrictions and the provisions of Customs Act, 1962. Accordingly, these were seized and taken over by the Customs for further action under the Customs law. In a follow up action and in reply to the show cause notice during the adjudication proceedings it was contended among other grounds that the Cassettes were purchased in the name of M/s. Maya Electronics in which he was a partner alongwith other two partners and they were equally liable for charges; out of 786 cassettes only 12 cassettes were of foreign origin supported by purchase invoices for personal use; remaining 774 were of Indian origin and onus was on the department to prove with positive evidence that they were of foreign origin, but such evidence was lacking. These contentions were negatived by the Additional Collector who adjudicated the proceedings but found that thirty seven (37) cassette tapes mentioned at Serial No. 9(j), (h) (i) of Annexure of seizure memo dated 11-3-1985 which do not contain any markings about the country of origin or erasure of any markings and accordingly, they were released. Remaining 749 Video Cassette tapes were ordered for absolute confiscation under Section 111 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the Additional Collector has proceeded in respect of some of the cassette tapes on the marking of T120 as Trade marking of Japan, which is neither a Trade marking nor a foreign brand. He contended that burden squarely lies on the Department to prove the goods were of foreign origin and smuggled goods, but without discharging the burden concluded on mere surmises. He argued that impugned order is not sustainable in the eye of law as show cause notice was initiated under Section 123 and findings also were without reference to Section 123 in the impugned order without proving with substantiated evidence that the goods in question were smuggled or forbidden. As regards penalty, he submitted that there was no categorical finding by the Adjudicating authority about the involvement of the appellant in importing contraband goods to attract personal penalty. Further penal action is not sustainable as it was not specified in the charge whether it was under sub-section 112(a) or (b) as it was not mentioned either in the Show Cause Notice or in the order. To a query from the Bench in respect of 12 Cassette tapes which were of foreign origin, he submitted that those 12 Cassette tapes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantially shown that the parts viz., cases etc. are permitted to be imported under Import Policy and the like cassette tapes are available in India and the inference can be drawn that the goods in question might have been assembled in India, the Department ought to have proved by getting expert opinion or by recognised practice with positive evidence to prove that the goods in question were of foreign origin. Erasing or non-erasing of marking is not the criterion unless it is proved that substance is of foreign origin. We Find that sufficient material evidence is not brought on record to prove the goods in question were of foreign origin for absolute confiscation and to impose personal penalty. As regards 12 cassettes, we observe that these, were duly supported by Bill No. 6052 issued by M/s. Salrang General Merchant, Delhi which was not disputed by the Department. In view of the statement at the first instance by the party that it was meant for personal use and in the absence of finding by the Additional Collector that these goods were meant for sale, the benefit of doubt should be given to the party with reference to Section 11G of the Customs Act, 1962. 7. In the result, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate the manner in which movable property was required to be disposed of or shared or the manner in which the liability if any in respect of any goods was required to be dealt with, but it appears, prima facie, that for any violation of law in respect of goods purchased by the partners in the name of the firm which belonged to the firm on or before the date of 04-02-1985 all the three partners will have to be considered as jointly responsible in the absence of anything to the contrary in the deed. Once Shri Anup Kumar Malik had stated that the goods belong to the firm the statement of other two partners were also required to be recorded and the notices were also required to be issued to them. 15. While it is not clear from the records whether the notice was so issued to other partners, I do find from the records that the other two partners had also written letters to the Collector with reference to the show cause notice. 16. In these replies dated ....... Shri Rajender Paul and Shri Varinder Kumar have stated as noted above that the firm was dissolved and the cassettes did not belong to the firm but to Shri Anup Kumar Malik, the appellant. Whereas in his reply Shri Anup Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be made to show whether these vouchers can be co-related with the goods in question with reference to other particulars mentioned therein. 22. It was also required to be ascertained whether they had been really assembled in India as claimed, with reference to some expert opinion or market enquiry, but there was nothing to indicate whether this was done. 23. I also notice that no categorical finding has been recorded as to whether cassettes in question were owned by Shri Anup Kumar Malik and were solely his personal property or belonged to the firm M/s. Maya Electronics at the time of their purchase and use prior to seizure. This was important since in the seizure memo Shri Anup Kumar has been shown as the proprietor of the firm M/s. Maya Electronics whereas he and other two persons had claimed that they are partners of the firm M/s. Maya Electronics. Since the show cause notice was issued against M/s. Maya Electronics also it means that the department was itself convinced at that stage that prima facie M/s. Maya Electronics also came into picture. Hence on both counts it was necessary to record a finding with reference to M/s. Maya Electronics which has not been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, M/s. Maya Electronics of which the appellant and S/Shri Rajinder Pal Kapur and Varinder Kumar are partners, and in reply to the Show Cause Notice the said two partners S/Shri Rajinder Pal Kapur and Varinder Kumar denied their any involvement in the matter stating further that the said firm, M/s. Maya Electronics had ceased to be in existence prior to the date of occurrence and that they had no interest in the goods under seizure. It was stressed by him that in his reply to the Show Cause Notice, the present appellant, Shri Anup Kumar Malik, also stated in paragraph 5 that he is not in any manner concerned with the video cassettes proposed to be confiscated. In his rejoinder, Shri Harbans Singh, learned counsel, submitted that the Additional Collector, who has passed the impugned Order, has held that the seized video cassettes 749 belong to the appellant and, therefore, at this stage, it cannot be said that the confiscated video cassettes belong to other than the appellant, Shri Anup Kumar Malik, adding that this dispute is of a civil nature which could be decided only by a Civil Court. 28. I have considered the submissions and since the detailed facts of the case have already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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