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TMI Blog1996 (7) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... dent witnesses. One of the packages bearing No. 299090/4(4) was found to contain among other items two card board boxes bearing the following markings 2645 X 2.1. One box bearing marks as TAMANIA C/wo 8 flat led green 31 K, Yellow 3mm round 32 K with a label inspected, samples inspected, Bureau of commodity inspection and Quarantine, Ministry of Economic Affairs, Republic of China . Inside the said box there were two card board cartons. Both of them bore markings as Kingbright Electronic Co. Ltd. PO. Box 81-153, Taipei . Each contained 32 plastic packets containing 1000 light emitting diodes each. Totally there were 32 plastic packets in one card board box and the other contained 51 packets. The total value of the said light emitting diodes of foreign origin was estimated at Rs. 1,11,000/- there was no transport voucher or memoranda, or any bill or any evidence of payment of Customs duty, or any other document of thing evidencing the lawful acquisition and transportation of the said goods of foreign origin accompanying the goods. As such the said goods of foreign origin were seized on 21-1-1989 under Section 110 of Customs Act, 1962 in the reasonable belief that they were liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olesale market of Calcutta for sale; that he started his business in Delhi recently; and that this was his first consignment and therefore, he requested for release of the goods. He produced before the officers : (1) Invoice No. MEC/77/89, dated 19-1-1989 advicing LED assorted size 3 mm. 5 mm round etc. 00.62 paise each totally valued at Rs. 73,507.20. (2) Delivery challan No. 77, dated 19-1-1989 of M/s. Metcon Engineering Co. 67-B, Netaji Subhash Road, Room No. 14, 1st Floor, Calcutta-700001. (3) Bill of Entry (photocopy) Rot No. 88/8, dated 3-3-1988 of M/s. Natural Products Export Corporation 53A, Mirza Galib St., Calcutta-700 016 from M/s. Taiwan Liton Electronic Co. Ltd., Taiwan; (4) Bill of Entry Rot No. 87/4414, dated 28-12-1987 of M/s. A. Tosh Sons Pvt. Ltd., F 32 33, India Exchange Place, Calcutta-1 from Senior Electronic Co. Ltd. Taiwan by AIR by flight No. IG 313 HS-IG, dated 28-12-1987. 4. Shri Goswami again appeared before the Senior Intelligence Officer on 7-3-1989 and submitted a letter to DD Investigation by name. He stated in his letter that his consignment held under seizure was imported from Taiwan by an Export House and sold on high seas basis t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments viz. M/s. Natural Products Exports Corporation, 53A, Mirza Galib St., Calcutta-16; M/s. A. Tosh Sons Pvt. Ltd., P 32 33, India Exchange Place, Calcutta-1; M/s. Metcon Engg. Co., 67-B, Netaji Subhash Road, Calcutta-1 had connived with Shri Goswami in fabricating the documents that were produced by the said party. Therefore, it was alleged that whereas diodes are a notified item under Section 123 of Customs Act, 1962 and the burden of proof that they are not smuggled into India lies on the party who has failed to prove the said legality. It was also alleged that the diodes are notified under Chapter IVA ot the Customs Act, 1962, contravention of these provisions attracts penal action under Sections 111(d) and 111(p) of Customs Act, 1962. It was alleged that Shri Rishi Goswami S/o. M.P. Goswami proprietor of M/s. Electro Instrumentation by his acts of commission and omissions is the party concerned and is dealing in the said goods of foreign origin of which he had prior knowledge that they were liable to confiscation, under the provisions of Customs Act, 1962. Therefore, it was stated that 83,000 pcs. of light emitting diodes in 83 plastic packages and of foreign origin tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repacking after import was done in respect of these goods. Therefore, he has held that it is established that the description of the goods does not tally with documents submitted by Shri Rishi Goswami in support of his claim having lawfully acquired the goods through purchase. The learned Additional Collector has also dealt with the second argument of the party that the licence number quoted on the High Seas Sale Agreement was duly debited before the Customs officers does not stand the ground because the original licence No. which was noted on the Bill of Entry was struck off and the subsequent licence number on the Bill of Entry was not endorsed. He has held that Shri Rishi Goswami in his claim of purchase had produced documents of Natural Products Export Corporation. However, M/s. Natural Products Export Corpn. in their replies had clearly denied having been concerned with the import of goods under seizure. They have claimed that the seized goods were never imported by them. M/s. Tamania Traders Pvt. Ltd. had claimed that they had purchased two consignments one for 30,000 pcs. from M/s. A. Tosh and Sons and the other for 45,000 pcs. from M/s. Natural Products Export Corpn. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods had been duly accounted and was covered by proper licence. The lower authorities had not appreciated the evidence on record and without proper appreciation have rejected the evidence. He submitted that all the details of the licence tallied with the imported goods and as such the confiscation and imposition of penalty is bad in law. He submitted that the goods had been repacked and sold to M/s. Metcon Engg. Co. by M/s. Tamania Traders. He submitted that M/s. Tamania Traders had purchased the goods from M/s. A. Tosh and sons. As the quantity purchased by M/s. Tamania Traders were more, then the required quantity supplied by M/s. Metcon Engg. Co. Therefore, M/s. Tamania Traders had repacked the goods and supplied the same to M/s. Metcon Engg. which were available in the market. The packing in the market had different brand name and the department had built up the case on the basis of these markings to held that they are from different countries and evidence produced pertaining to the purchase of the goods does not tally with the markings with the wrappers. He submitted that the goods are not smuggled one but they had all been purchased on High Seas Sale basis as er the licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containing 1000 Light Emitting Diodes each. The question before the authorities was to whether in the light of these packings and the markings thereon as to whether it was the same as per the documents placed by the appellants to show that it had been imported from Sr. Electronic Co. Ltd., Taiwan. The appellants have produced the invoice dated December 25, 1987 of the said Sr. Electronic Co. Taiwan to M/s. A. Tosh and Sons. There is one more invoice produced from Taiwan Litox Electronic Co. Ltd. in favour of M/s. Natural Products Export Corpn. M/s. Natural Products Export Corpn. in the statement to the authorities denied that the goods under seizure were those supplied to M/s. Tamania Traders. M/s. Tamania Traders had contended that they had purchased these goods from M/s. Natural Products Export Corpn. and in this context relied on the letter dated 27-4-1988 issued by M/s. Natural Products Export Corpn. to M/s. Tamania Traders pertaining to sale of LED. As can be noticed from these documents, first invoice of Senior Electronics Co. Taiwan is dated 25th December, 1987 and second invoice of Taiwan Litox Electronic Co. Ltd. to M/s. Natural Products Export Corpn. is dated Feb. 25, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rejected by the adjudicating authority. 12. The second stand which is against the appellant M/s. Tamania Traders is that they had stated that they had repacked the goods by purchasing the packing material from market. They have not explained on what date they had purchased the said packing materials and from whom they purchased. They have not explained as to how the very packing of the goods in question could be available in the market. A mere statement that such packing material is freely available in the market is a unsupported and uncorroborated evidence. It is also seen from the panchnama that the packing in question is in original condition. If the repacking had been done then the packing would have been disturbed and there would not be any original packing. Further during the course of argument, on a particular query from the Bench, the learned Advocate admitted that M/s. Tamania Traders were also importers of said goods. They have not explained as to how, the box bore marks as TAMANIA C/wo 8 flat led green 31 K, 3 mm round 32 K with a label inspected, samples inspected. Bureau of Commodity inspection and Quarantine, Ministry of Economic Affairs, Republic of China . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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