9911796707
TMI Blog1992 (3) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs without declaration, and further pleaded guilty and sought to be excused. He also claimed that these diamonds were brought by him, because they were rejected by the Hongkong buyer Gijon Ltd., out of the lots exported by the firm, in which the appellant and his brother Shri Anil P. Shah were the partners. He also admitted that he was aware that bringing such diamonds without Reserve Bank permit and I.T.C. clearance was prohibited. Subsequently investigation and searches were carried out in various premises and the statements of various persons including the brother Shri Anil P. Shah were recorded. After investigation Show Cause Notice was issued by the Department to the appellant and his brother Shri Anil P. Shah. The said notices were sent by Registered Post A.D. on 17-7-1986, but claimed to have been received by the appellant on 23-7-1986. In the adjudicating proceedings held by the Additional Collector, he ordered absolute confiscation of cut and polished diamonds weighing 579.93 carats valued at Rs. 15.73 lakhs and imposed a penalty of Rs. 5/- lakhs on the appellant. The proceedings against Shri Anil P. Shah were however dropped. The present appeal is from Shri Nayanku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. SDR stated as below:- (a) There is no dispute that the Show Cause Notice was issued to the appellant and his brother (who are the only two partners of the firm claiming ownership of the diamonds) on 17-7-1986 by R.P.A.D. The postal receipts thereof also have been verified by the Adjudicating Authority. The addresses, being local, the said notice can be reasonably presumed to have been actually received on 18-7-1986 or 19-7-1986 and not on 23-7-1986, as claimed by the appellant. Sending the notice by R.P.A.D. is also one of the modes of serving the notice prescribed under Section 153 of the Customs Act. If the appellant, for reasons known to him, avoids receiving the notice or delays receiving the notice, that date cannot be taken as date of service. The date of service is the date on which the notice has been sent by R.P.A.D. and has left the hands of the Dept. It cannot be expected that the Act envisages the Dept. chasing the parties for service of notice to all the nook and comer of the country. That is why the manner of service of notice is specifically prescribed under the Customs Act in Section 153 thereof. She therefore contended that the service has been made accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , first, would like to examine the issue from the undisputed factual position. It is an undisputed fact that when the appellant was returning from Hongkong, the Air Customs Officers recovered the diamonds on personal search of the appellant, as is evident from the panchnama for the seizure of the diamonds. This panchnama has not been challenged and the contents of the panchnama clearly indicate that the appellant did not declare the diamonds when specifically questioned and thereafter on his personal search, the diamonds were recovered. Though in his statement given immediately after seizure on 19-1-1986, he admitted to this position, he has chosen to retract this stand, by saying that he voluntarily declared the diamonds. All the same, he stands by the same statement dated 19-1-1986, when it pertains to the claim of bringing the rejected diamonds. Thus it becomes difficult to believe his subsequent version to the effect that his statement dated 19-1-1986 was not a voluntary one. In any case, the panchnama, which remains undisputed, clearly indicates the sequence of happenings before recovery and that establishes non-declaration and recovery only after personal search. Such a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 1982 (10) E.L.T. 270 (Ker.) = 1982 ECR 484D. Though that decision is with regard to notice issued within the Gold (Control) Act, where also there is an identical provision for return of Gold, if notice is not given within six months from the date of seizure, and there is a specific provision for the manner of service of notice. In that case, the High Court have also approvingly adopted the ratio of the judgment in a Customs case on the very same issue. In this context, the relevant extracts from the above judgment of Kerala High Court are reproduced below for proper appreciation :- The purpose behind Sec. 79 is two-fold. The first is that confiscation shall be ordered without the concerned party being given a reasonable opportunity of having his say in the matter. The second is that the appropriate authority should make up his mind within six months whether to proceed with confiscation or not. He should make up his mind within six months whether such proceedings should be initiated, and if he fails to do so, the party concerned is entitled to have the gold seized, returned to him. In the present case, the seizure was on 9-7-1974. The appropriate authority had definitely m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were seized, within the stipulated period. Hence, ordering return of the diamonds either to the appellant or to the firm (who are not even the appellants before us) does not arise. 9. For the sake of record, we are to deal with this claim of ownership by the firm. The documents produced indicate that there is some litigation between the firm and the foreign buyer and some diamonds were given to the appellant, by the foreign buyer (as is stated in the defence statement of the foreign supplier on 8-2-1990 long after even adjudication). The appellant urges us to accept this as evidence of rejected diamonds being re-imported for purposes of Section 20 of the Customs Act and for purposes of Cl. 11 (j) of I.T.C. Order 1955. However, benevolent, we could try to be, we cannot swallow this line of argument for the following reasons. Section 20 of the Customs Act prima facie treats Indian goods imported from abroad on par with foreign goods imported [vide Section 20(1)] and hence they are subject to all prohibitions and restrictions including the requirement of payment of duty, as applicable to foreign goods. If, however, the importer establishes to the satisfaction of the proper author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chosen to resort to this covert act of concealing and smuggling the diamonds. Presence of diamonds, by the very nature, cannot be easily detected even by modern gadgets. Hence great reliance is placed on declarations from passengers of status, since they cannot be subject to indiscriminate personal search. In such a situation, the appellant s deliberate act, cannot, by any standards, be viewed with leniency. The penalty imposed is not excessive, judged in the context of the value of diamonds and the covert manner of smuggling, resorted to be the appellant. Hence we dismiss the appeal, being devoid of any merit. 11. [Assent per: P.K. Desai, Member (J)]. - I have the privilege of going through the order proposed by Brother R. Jayaraman, Member (Technical). Though I concur with the conclusion drawn, as some issues of law have been raised, I deem it desirable to record my separate order. 12. On the factual aspect, there does not appear much scope for discussion. Bringing of diamonds by the Applicant, duly kept in his pant pocket at the time of returning to India, otherwise than under the due procedure provided for, is not under dispute. The plea raised as to the voluntary declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven at this stage, to produce the same by way of additional evidence. 12.4 Both the sender and the addressee are from Bombay and the envelope containing the notice, is also admittedly served on the appellant at Bombay. At least, no plea is raised to the effect that the appellant was not in Bombay during the relevant period and the Registered letter was re-directed. From the record it also appears that notice was sent both at residential and business address. 12.5 Under the law, tender is deemed to be a legal service, and postponement of actual receipt, till on a specified date, would not be taken as having any bearing, if due tender on any earlier date is established. 12.6 There is a presumption in law that when correct address and posting is proved, the letter must have been delivered in due course. The presumption so raised is of course, a rebuttable one and further, evidence to be adduced for such a rebuttal need not be strong enough to conclusively establish the said plea, and on adducing such evidence, the burden shifts on the other side to prove due receipt of the letter by the addressee. All the same, it remains for the addressee to bring some evidence in that regard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not assume any importance in relation to the scrutiny of the order of confiscation vide Section 111(d) and of the personal penalty vide Section 112(a) of the Customs Act. 14. CEGAT South Regional Bench, has in Manjit Singh v. Collector of Customs, Bombay, 1986 (26) E.L.T. 649 held that once the party participates in the adjudication proceedings pursuant to the show cause notice, vide Section 124, and order in relation to said adjudication is passed ordering confiscation, the issue of the non-service of notice within a period of six months, becomes one of an academic interest. 15.1 Even that apart, going by the decision of the Supreme Court in the Asst. Collector, Customs v. Charandas Malhotra 1983 (13) E.L.T. 1477 (S.C.) = AIR 1972 SC 689, the said Court has held that Section 124 does not lay down any period within which the notice has to be given and Section 110(2) affects only the seizure. In Mohanlal Devdanbhai Choksey v. M.P. Mondkar, 1988 (37) E.L.T. 528 (Bom.) the Bombay High Court has also considered the said decision of the Supreme Court, and has concluded that the Supreme Court has only re-affirmed the view that Section 124 does not lay down any period of limitation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he protection of the law and how the due and orderly administration of law can be diverted into a new course, which may serve as an evil procedure in future. Further the same High Court has, in Shah Chaganlal Gaimalji v. Union of India 1988 (34) E.L.T. 428 (Delhi) held that Section 110 has nothing to do with ultimate confiscation of goods and that Section 124 is not dependent upon actions under Section 110. The Bench has then relied upon the decision of Calcutta High Court in Kantilal Somchand v. Collector of Customs 1982 (10) E.L.T. 902. There the High Court has only considered the provisions of Section 124 vis-a-vis seized property but has not looked into the issue from the angle that confiscation under Section 124 can be ordered even without the seizure. The Bench has also relied upon the decision of Punjab and Haryana High Court in Tersem Kumar v. Collector of Central Excise, AIR 1972 P H 444, but the same High Court has in Munilal v. Collector of Customs AIR 1975 P H. 130, taken the other view. CEGAT-North Regional Bench has also, in Sat Pal v. Collector of Customs 1987 (27) E.L.T. 107 (Tri.) considered the provision as independent. The Honourable Members appear to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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