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TMI Blog2001 (5) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon for viewing. No documents or proof for import or purchase of these goods of foreign origin were produced when the Customs Officers went for investigation to the business premises of M/s. CET. The appellants had no customs paying documents. There were no receipt/bills indicating purchase of such foreign goods. Wherever documents or proof for import or lawful possession had been produced, no seizure was effected. In his letter dated 19-5-1999, Shri Sunil Khera, Director, had agreed to pay the customs duty on the basis of proper valuation. In paras 9, 10 11 of the show cause notice dated 28-9-1999, it is recorded as under - 9. S/Shri Sunil Khera and Sanjay Gupta, both directors of The Balcony vide their joint letter dated 20-5-1999, addressed to the Assistant Commissioner of Customs (Preventive), New Custom House, New Delhi, stated that they undertook to pay the full amount of evaded customs duty amounting to Rs. 12.35 lakhs. They also undertook to deposit Rs. 10,00,000/-, out of the aforesaid amount by 21-5-1999. Both the aforesaid directors of The Balcony , vide their letter dated 21-5-1999, informed the Assistant Commissioner of Customs (Preventive) that they had d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t M/s. CET and the two Directors. The adjudicating authority, the Commissioner of Customs, noted that the LDs and DVDs were for viewing the films/movies and the noticees were conducting business of lending these LDs and DVDs on charging the rent. The goods were of foreign origin and there was no evidence of their legal import and lawful possession. It was also held that the goods in question were restricted items for import and had been smuggled into the country without authority. Relying upon the various judgments, the charges as levelled in the show cause notice were found established against the noticees. M/s. CET had paid the customs duty leviable on the seized goods even before the issue of show cause notice. 2. The matter was heard on 30-4-2001 when Shri L.P. Asthana, Advocate, submitted that these are three appeals and all of them arise out of a common order-in-original. The appellants were operating as a library and were supplying the discs to their customers on rent. According to the learned Advocate, the import of these discs were free, they were freely marketable and were freely available in the market; the burden of proof that the goods in question were smuggled wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The learned DR relied upon the Supreme Court decision in the case of Collector of Customs, Madras and Ors. v. D. Bhoormull, 1983 (13) E.L.T. 1546 (S.C.). 3. We have carefully considered the matter. We have taken into account the submissions made by both the sides and have generally gone through the various decisions referred to by both the sides across the bar. The goods in dispute were LDs and DVDs for viewing films/movies. They were of foreign origin and the foreign films were recorded thereon. They were being openly displayed and were being circulated for commercial purposes. The customers were viewing the films recorded on such discs. The appellants had argued that the import of such discs was free under ITC (HS) Classification No. 85243900 [refer page 801 of the ITC (HS) Classifications of Export and Import Items, April, 1997 - March, 2002 (Incorporating Amendments made up to 31st August, 1998)]. Heading No. 85243900 is for the discs for laser reading systems. The relevant entries are extracted below - Discs for laser reading systems : 85243100 For reproducing phenomena other than sound or image Free 852 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act. Wherever evidence for legal import and lawful possession had been adduced, the goods were not seized and were left with the appellants (refer Panchnama dated 15-4-1999 - English translation at page 43-44 of the paper book). With regard to the other seized goods, no evidence had been adduced to disprove these allegations and the case has been argued on the plinth of burden of proof alone. 8. The averment that the goods in question have been legally imported could only be established by the appellants. When a fact is within the special knowledge of any person and that person alone could prove that fact, then the burden of proof could not be shifted to the person who could not be ascribed with the knowledge of such a fact. In Section 106 of the Indian Evidence Act, 1872, it has been provided that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. We may also refer that the concept of burden of proof in the general law of our country has been so nicely dealt with in paras 18 to 22 of the Karnataka High Court Bangalore Bench decision in the case of Srinivasa Traders and Ors. v. Commercial Tax Officer, 1985 (58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Gupta had stated as under - I Sanjay Gupta hereby state that we have deposited the amount of customs duty on the 1687 laser discs and 579 DVDs seized from our shops The Balcony on 15-4-1999. The customs duty amounting to Rs. 12,33,994/- has been deposited by us voluntarily on the CIF value of each LD as US$ 20 and each DVD as US$ 15 which is prevalent at present at the IGI Airport while charging duty on such items from persons importing such items. As already disclosed by me in my earlier statement dated 19-5-1999 I restate that I am not in a position to submit any import document and customs duty paying document in respect of the LDs and DVDs seized from our 2 shops The Balcony at C-134, Greater Kailash-I, and 19A Basant Lok, Vasant Vihar, New Delhi on 15-4-1999. I donot want to add anything more to my earlier statement and I agree with the contents of my earlier statement. The other director Shri Sunil Khera also agrees to the decision taken by me in depositing the amount of customs duty due on the seized goods. The duty of the customs as above has been deposited with the approval of both directors. This statement given by Shri Sanjay Gupta had been agreed to by the an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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