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TMI Blog2004 (7) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... ta. Brief facts of the case are as follows :- 1.1 The appellant-company has imported three consignments of AA Size Telesun Brand Dry Cell Pencil Battery from Thailand at a total declared assessable value of Rs. 47,41,271.20 (Rupees forty-seven lakh forty-one thousand two hundred and seventy-one and paise twenty). Certificates of Origin regarding the origin of the goods were shown as "Thailand". They filed three bills of entry for warehousing of the same. The Customs decided that the subject goods be examined in presence of the S.I.B. Accordingly, the packages were opened, appraised and examined in presence of the SIB Officers. The country of origin/manufacturer of goods was not found stenciled/embossed either on the master carton or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(m) of the Customs Act, 1962 and gave an option to the appellant-company to redeem the same on payment of Rs. 15.00 lakh (Rupees fifteen lakh). He also imposed a penalty of Rs. 10.00 lakh (Rupees ten lakh) on the appellant-company and that of Rs. 5.00 lakh (Rupees five lakh) on the another appellant, Shri Bharat Kumar Mahensaria, Proprietor of the said firm. 2. We have heard Shri S.K.Bagaria, learned Sr. Advocate assisted by Shri V.N. Dwivedi, learned Advocate appeared for the appellants and Shri N.K.Mishra, learned J.D.R. for the Revenue. 2.1 Shri Bagaria, learned Sr. Advocate submits that the Sales Contract with M/s. T.P. Enterprises, Singapore was for import of Batteries (Telesun Brand) of "Thailand Origin". The foreign sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not under any obligation to supply the same. (ii) The Commissioner has held that there was striking similarity between the imported Telesun brand of the said batteries and Durabatt brand of batteries of Chinese origin. The appellants submitted that the goods imported by the appellant-company were called as "Telesun". There was nothing to show that this brand was manufactured by any manufacturer in China. Shri Bagaria submitted that the brands "Telesun" and "Durabatt" are totally different letters and can never lead to any assumption as if the goods of Telesun brand imported by the appellant-company were manufactured by the manufacturers of Durabatt in China. The appellant-company pointed out that the Customs could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) 2003 (152) E.L.T. 262 in the case of Cadila Laboratories Pvt. Ltd. v. CCE (S.C.); (e) 2003 (153) E.L.T. 491 in the case of CCE v. Markfed Vanaspati & Allied Industries (S.C.); (f) 1998 (98) E.L.T. 3 in the case of Mirah Exports Pvt. Ltd. v. Collector of Customs (S.C.); (g) 1996 (87) E.L.T. 12 in the case of Union of India v. Garware Nylons Ltd. (S.C.). (v) As regards the DGFT Notification No. 44 (RE-2000)/1997-2002 dated 24-11-2000, learned Advocate submits that as per Para 4 of the said Notification, some declarations were required to be made on the imported goods and a compliance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant-company, was also not legal and valid. The Appellants' advocate, in this connection, submits that the Commissioner was not justified in levying penalty both on the appellant-company as also on its sole Proprietor, Shri Bharat Kumar Mahensaria. He has cited the following decisions in this regard - (a) 2002 (144) E.L.T. 560 in the case of Bhairav Printers v. CCE; (b) 2001 (128) E.L.T. 113 in the case of Sarala Enterprises v. CC; (c) 2000 (126) E.L.T. 1098 in the case of Deepak Dhar Gupta v. CCE. In the end, he requests that the appeals may be allowed with consequential reliefs to the appellants. 3. Shri N.K. Mishra, learned J.D.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Government to ascertain that the goods were of Chinese origin and not Nepal. The correctness of the certificate issued by the Nepal Government regarding the origin of the goods had not been doubted or questioned. All the relevant documents regarding the legal import of the goods contained the description of the goods as Ginger of Nepal. No evidence has been brought on the record to suggest that the seized Ginger was not available in Nepal. For want of any corroborative evidence, no inference could be drawn that the goods imported were of Chinese origin". The Revenue had not properly rebutted the origin of the goods claimed by the importer. 6. As held by the Hon'ble Supreme Court in the various decisions, the burden to prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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