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TMI Blog2002 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... , Manager of M/s. Sachin residing at 14, Mukta Ram Babu Street, Kolkata-700 007. 2. The Commissioner, after considering the submissions, has ordered the confiscation of the stones of foreign origin valued at Rs. 1,50,13,475.00 (Rupees one crore fifty lacs thirteen thousand four hundred and seventy-five) under Section 111 of the Customs Act, 1962. However, he has given an option to redeem the same on payment of a fine of Rs. 80.00 lakhs (Rupees eighty lakhs) and Customs Duty at appropriate rate. The other stones not covered by examination and valuation report by Government-approved valuer, were ordered to be released to the noticees. Indian currency of Rs. 6,98,880.00 was ordered to be confiscated under Section 121 of the Customs Act, 1962 and a personal penalty of Rs. 15.00 lakhs each was imposed on both S/Shri Sachin A. Mehta and Satish A. Mehta under Section 112 of the Customs Act, 1962. 3. These two appeals have been filed by Shri Sachin A. Mehta and Shri Satish A. Mehta and were heard. After hearing both sides duly represented by Shri B.N. Chattopadhyay, learned Consultant for the appellants and Shri T.K. Kar, learned S.D.R. for the Revenue, it is found as under :- 3(a). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied the charges that the seized Indian currency are the sale proceeds of illegally imported goods. In this regard he also cited the following decisions of the Hon ble Courts :- (i) 1998 (25) RLT 299 (T) (ii) 1993 (46) ECR 44 (T) (iii) 1993 (65) E.L.T. 558(T) (iv) 1992 (61) E.L.T. 650 (T) Mr. B.N. Chattopadhyay and T.K. Ghosh, Advocate duly authorised by both the noticees appeared on the date fixed for personal hearing, they reiterated their stand already given by each of the noticees dated 26-6-2001 in response to the show-cause-notice. FINDINGS I have examined the facts of the case carefully and it is seen that on the basis of specific information the Customs Officer of P I Branch, Kolkata effected a seizure of miscellaneous stone (Panna, Rubi, Chuni) of foreign origin valued of Rs. 1,79,47,462/- and Indian currency 6,98,880/- from the workshop and office premises of M/s. Sachin, 14, Muktaram Babu Street, Kolkata-700007 on 16-9-2000 on the strength of search warrant. On the date of seizure the Manager of the Company Mr. Satish Mehta who claimed himself the uncle of Mr. Sachin A. Mehta, the proprietor of the said firm, could not produce any valid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qua non Poddar Tyres (Pvt) Ltd. v. Commissioner - 2000 (126) E.L.T. 737. (2) Right to confront witnesses is not an essential requirement of natural justice where the statute is silent and the assessee has been offered an opportunity to explain allegations made against him Kumar Jagdish Ch. Sinha v. Collector - 2000 (124) E.L.T. 118 (Cal H.C.). (3) Strict rule of burden of proof applicable to criminal prosecution may not be applicable to proceedings before Customs authorities. A.K. Hanbeen Motarred v. Collector - 2000 (125) E.L.T. 173 (Mad HC). (4) (a) Cross-examination is not a must in each and ever adjudication proceedings (b) when rejected, reasons to be given. International Electron Devices Ltd. v. Commissioner - 1999 (107) E.L.T. 238 (T). (5) Constitutional Bench (consisting of 5 judges) in the case of State of J K v. Bakshi Gulam Mohammed as appeared in AIR 1967 S.C. 122 (v-54-C23) Para 20. (6) Hon ble High Court of Calcutta for the case of Tapan Kr. Biswas v. UOI - 1996 (63) ECR 546 (Cal) (7) Another case as AIR 1967 (Cal), Page 80, Kishanlal v. Collector. Shri Satish Mehta, the Manager of M/s. Sachin in response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) 1997 (89) E.L.T. 646 (S.C.), (9) 1997 (90) E.L.T. 241 (S.C.), and (10) 1996 (83) E.L.T. 258 (S.C.). The investigation have conclusively proved that Stones under seizure are of foreign origin on the strength of examination and valuation report dated 18/19-9-2000 by the Government approved valuer namely M/s. S.K. Mehta Co. of 57A, Aravinda Sarani, (3rd Floor), Kolkata - 700 005 whereas the noticee parties have failed to produce even a single bill/voucher/bill of entry etc. to prove licit importation of the Stones. Therefore, the burden to prove that goods are smuggled one gets shifted to the noticee parties. The Supreme Court in the case of Kanungo and Co. v. Collector of Customs has held that the burden of proof shifts from the Department to the assessee if the Department has disclosed all the evidence on record which militates against the assessee and the assessee is not able to meet the inference arising therefrom. The Court further held that the burden will also shift on the assessee if false evidence is given by them. Similarly, where the incorrect or forged documents are seized from the assessee, burden shifts on to him to prove his bona fides. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Select Committee to the Bill while going through the Customs Bill had observed as under :- The Committee feel that the record containing the grounds of belief, etc. to be maintained under the provisions of Sec. 165 of the Code of Criminal Procedure, 1898, should be forwarded to the Collector of Customs and not to the Magistrate in order to enable the former to keep proper control over the customs officers authorising search of premises. This amendment has been incorporated. Therefore, the control on the exercise of the powers by the Assistant Commissioner under Section 105 of the Customs Act, 1962, as a proper officer s belief, to save the citizens from vexatious seizures, the effective remedy has been introduced by making it mandatory in the records of the seizure to be placed before the Collectorate. In the present case; no evidence has been brought to the effect that the same were produced before the Collector. It was imperative to have brought this facts in the proceedings or pleaded by the Revenue before us. In the absence of the same, we cannot find whether this provision of the law was complied with or not. In any case, it is on record that the appellants had appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been imported into India by violating the rules of import and the Customs barrier. It is a known fact that rough coloured stones are being imported into India for polishing at various stations for the last so many centuries. The stones under consideration are claimed to be non-workable, inasmuch as it was difficult to cut and polish them and thus they could not be sold. No evidence as relied upon by the adjudicator, has been brought by the investigator, to prove whether this claim of the appellants was correct or incorrect. In view of this claim not being challenged, we cannot determine the stones to be of recent imports. In any case, the onus to prove the illegality of the import of the stones in question, which was on the Department, has not been discharged. 3(e) When the illegal import and the foreign origin of the goods in question, are not established, there is no question of their liability for confiscation merely because the documents evidencing their acquisition, cannot be produced. 3(f) As regards confiscation of the Indian currency, the same is not upheld, since it is not proved as to what are the smuggled goods and whether the currencies seized by the Customs are th ..... 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