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TMI Blog2001 (10) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in Appeal No. C-190/98 and Rs. 5 lakhs on the appellant in Appeal No. C/191/98. No penalty was imposed on appellant in Appeal No. 282/98. 2. The facts of the cases are that the appellant in Appeals Nos. 190 and 191/98 are, one is company and the other one is a Director of the company. They inter alia imported four consignments of the following electronic goods, in respect of which they filed two Bills of Entry, details whereof are as under : B/E No. Date Description Quantity Bill of Ldg. No. 3136/27-3-96 Blank Video Cassettes 31800 Pcs. 150090610, 6118612 3137/27-3-96 Disc Players 128 Pcs. 150090611 613 The consignments were initially deposited in the warehouse and thereafter part of the goods cleared for home consumption on the ex-bond B/E for home consumption. At the relevant time 20 pieces of Blank Video Cassettes and 27 pieces of Disc Players were lying in the warehouse. It is stated by the appellants that these two consignments were imported from M/s. Shail Trading, Singapore (the other appellant in Appeal No. 282/98). The appellants Kaiser Power Appliances Ltd. and Shri Gurudas S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit, viz. as the appellants could not pay the amount immediately, they placed the order on the appellant in Appeal No. 282/98 who gave certain banking facility for the import of the goods. After the goods were imported, it is argued, that the investigation done by the department viz. the statement of the appellant in C/191/98 and reliance thereon is not correct in law. Shri Nankani argued that it is no doubt true when on 31st October, 1997 the appellant in C/191/98 accepted payment of Rs. 12 lakhs which may indicate an evidence of under valuation, he specifically stated that it could not be treated like that. He says the subsequent statement of Shri Choitramani contradicts the same. Out of 12 lakhs, it was revealed that certain drafts to the extent of Rs. 2 lakhs each (numbering 3) was paid to Rama Watch Inds. which came under the jurisdiction of Ahmedabad Commissionerate. But Choitramani s subsequent statement and the statement of Rama Watch Co. contradict the above statement. Mr. V.S. Nankani further emphasizes the fact that if the department connect the payment of Rs. 6 lakhs then what happens to the remaining sum of Rs. 6 lakhs. What is the explanation the department could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. He further argued that it is an admitted fact that on the precedent judgment of the Tribunal in the case of M/s. Radiant Plastic Industries P. Ltd. in Appeal No. C/192/96 vide Order No. 3752, dated 9-12-1996. It has been held that these types of goods are not a prohibited item. If that were to be so the question of charge under Sec. 111 (d) does not arise. He also states that since he is the owner in terms of the judgment of the Supreme Court in UOI v. Sampat Raj Duggar - 1992 (58) E.L.T. 163 is entitled to re-shipment of the goods. He also argues that in respect of 44500 Pcs. covered by bill of lading, dated 25-7-1996, Exhibit 3 for which no Bills of Entry was filed under no stretch of imagination charge under Sec. 111(m) could be sustained in law. Words appearing in Sec. 111(m) viz. inconfirmity of the particulars filed in the Bs/E would show that the charge itself has no legs to stand. As far as the other consignment is concerned Shri Patel adopts the arguments of Shri V.S. Nankani. 6. The ld. D.R. adopted the reasoning of the lower authorities. 7. We have considered the rival submissions. As far as the valuation of the imported product is concerned, it is to be noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 13-11-1996 and 26-11-1996. If that were to be so, then the goods were sold in the market in June, 1996. How the goods which had been given in March, 1996 could have been paid belatedly in June, July, 1996. It is not possible for us to correlate with the same. In fact one cannot agree with the finding given by the adjudicating authority in paragraph IVA of his order. Moreover, the documents are not the original as contended by the ld. Counsel Shri Nankani. The judgment in the case of 89 E.L.T. page 11 is clearly in favour of the appellants. It has been rightly argues by the appellants that provisions of Sec. 139 of the Customs Act have not been complied. That section reads that where any document is produced, by any person or has been seized from the custody or control of any person, in either case, under this Act or any other law or has been received from any place outside India, in the course of investigation of any offence alleged to have been committed by any person under this Act, and such document is tendered in evidence against him or against him and any other person who is tried jointly with him the Court shall presume about the genuineness of the documents. (In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng sent to India). We are, therefore, of the view that it is not possible for us to accept the case of the department but only the case of the assessee. Some of the instances are the order is produced at page 77 it is stated that purchase Order No. 7/97 about Video tapes and laser disc player it is dated 13-1-1996 consignee is mentioned as Kaiser Power Appliances is not at all sent. Quantity as shown as 36,500 video tapes and 163 laser disc players. But that is not signed. Therefore it is one as example. We are, therefore of the view that there may not be any revision of the valuation under invoicing has not been proved. 9. This takes us to the other appeal viz. Appeal No. 282/98 where Mr. J.C. Patel argued that Kaiser has abandoned the goods. Kaiser did not retire the documents. Therefore the ownership of the goods has not passed on from Shail Trading to Kaiser. Therefore he states, the goods being not a prohibited item, the department should have allowed reshipment of the goods. It is agreed. It is admitted position that the Tribunal in its judgment made in Order No. 3752, dated 9-12-1998 in Radiant Plastic Industries Ltd. has held that the goods were freely importable. If that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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