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TMI Blog2005 (5) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 9-4-2003 Commissioner of Customs (Appeals), Bangalore 4. C/204/03 M/s. Bechan Mishra OIA No. 148/2003, dated 9-4-2003 -do- 5. C/211/03 M/s. Patel Angadia Company OIA No. 151/2003, dated 9-4-2003 -do- 6. C/212/03 M/s. Patel Angadia Co. OIA No. 228/2003, dated 29-5-2003 -do- 1 C/238/992 C/239/99 2.The DRI Officers visited the premises of the appellants. They found silk yarn suspected to be of foreign origin in the premises of the appellants. In the premises of M/s. Ganesham, they found 153.30 kgs of silk yarn in four closed bags and also cash amounting to Rs. 24.99 lakhs and cheques worth Rs. 8.19 lakhs. There was also a register containing details of sales of silk yarn made in the previous week. All the above goods, currency and documents were seized. The officers drew samples from quantities of silk yarn seized. Statements were recorded from Sri Pramodkumar, the GPA holder and Sri Sushilkumar, a relative of the proprietor of the appellant on 17-1-98. In the statements they accepted the trading of such yarn without proper documents. Sri Pramodkumar, in furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Hence the appellants have discharged their onus that the goods are not smuggled and it is for the department to prove otherwise. V. The DRI officials conducted enquiries with the suppliers of the goods, M/s. Nataraj Enterprises, who confirmed the supply of 80 bales of silk yarn to the appellants in December 97, and provided documents. They stated that out of 80 bales, 50 bales were initially sent to Ahmedabad and later on the said party not paying the price, they deviated the said consignment to Bangalore. VI. Relying on the Test reports, the Commissioner has concluded that the goods seized and the goods covered by the documents are different. Hence, he has confiscated the goods, which has been seized and also demanded duty with regard to the 80 bales of yarn. Even according to the appellants the goods seized by the officers and the goods covered by the documents are different. This is so because, the quantities covered by the documents is 80 bales, which would approximately work out to 4800 kgs. Even according to the department, they have sold 4752 kgs which would leave a balance of 48 kgs. The quantity seized is 153 kgs, and that too from the closed bales. It cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of M/s. Nataraj Enterprises. This is clear since the test reports of the goods indicate a different derniarage from the one supposed to have been the one imported by M/s. Nataraj Enterprises of Calcutta. 6. We have carefully gone through the records of the case. On the date of seizure of the goods, statements were given to the effect that the appellants used to receive mulberry silk of foreign origin on which Customs duty has not been paid. Even though the statement was retracted, the appellants themselves gave the details of the purchase of Mulberry silk from M/s. Nataraj Enterprises, Calcutta. The departmental investigation revealed that the goods seized are not covered by the Bills of entry by which M/s. Nataraj Enterprises are supposed to have imported. The adjudicating authority, in para 26 of his findings in the Order dated 1-3-99, has held that the goods under seizure as well as those cleared earlier by the appellants had not discharged the duty liability though they are of foreign origin. As the derniarage of the goods seized and the goods covered by the Bills of entry, are different, Revenue has established that the goods are smuggled. It is also seen that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so confiscated absolutely. The packing cloth used for packing the goods were also confiscated. A penalty of Rs. 1,50,000/- was imposed on Sri Bechan Mishra under Section 112 (A) of the Customs Act, 1962. A penalty of Rs. 75,000/- was imposed on M/s. Prashray Plastics and a penalty of Rs. 75,000/- on M/s. Patel Angadia Company. The Commissioner (Appeals) in separate orders confirmed the findings of the original authority. 10Sri G. Shivadass, and Sri Manohar Jeerige advocates appeared for the appellants and Sri R. N. Vishwanath, SDR for the revenue. 11.The learned advocate urged the following points: I. Since the goods are non-notified the onus is on the department to prove that they are smuggled. II. The documents for proving the licit import of goods were provided by the appellants. On verification by the Department, it has been established that the goods were originally imported by M/s. HHEC a Government of India undertaking. III. The goods in question also had the markings that tallied with the markings available with the foreign suppliers invoices and the Bill of Entry in question as evident from the Panchnama drawn on the date of the seizure. IV. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow the appeals with consequential relief. C/211/035. 14.In this case, the appellant is M/s. Patel Angadia company. The facts of this case are the same as in Appeal Nos.C/203 204/03 dealt with in the order at Para 7. A penalty of Rs. 75,000/- has been imposed by the original authority under Section 112(b) of the Customs Act, 1962. The relevant findings are as follows: The lorry receipt dated 10-10-99 produced by M/s. Patel Angadia Company to say that goods were transported from Nagari to Hindupur, bears no description of the goods being transported, nor any indication that the goods were transported from HHEC to M/s. Prashray Plastic Industries. The seal on the said lorry receipt is that of the Yelahanka checkpost on the outskirts of the city, which is not en route Nagari to Hindupur. In face of such glaring omissions in the document, it can only be concluded that no evidentiary value can be attached to the same. The transporters have contended that merely because the description of the goods was not mentioned in the documents, it could not be alleged that the transport never took place. This argument cannot be given any credence, since a prudent transporter is expecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods have been received from the above mentioned co in cal. On verification the transport documents were found to be bogus. The department came to the conclusion that the documents submitted by M/s. PA do not cover the goods seized from them. The original authority in his order in original dated 5-12-2000 has given the following finding. From 18. the challan No.1/8178, dated 7-9-99, of M/s. NCCF, it is seen that the goods are to be transported through Vehicle No. KA-05-A-2471. M/s. Patel Angadia Co. (P) Ltd. have produced challans to show transport of the goods under seizure and as per the documents produced by them, the goods were transported in two lorries, one bearing Regn. No. KA-05-A-2471 and the other in lorry No. KA-01-5825. The case of the investigation is that the vehicle bearing No. KA-05-A-2471, said to be carrying the goods, had passed through Old Madras Road, Commercial Tax Checkpost, on 12-9-99, and as per the letter dated 14-3-2000 of the Commercial Tax officer, this vehicle was moving from Bangalore to Calcuta. It is also reported that lorry No.KA-01-5825 which had passed through the check post on 12-9-99 was carrying handloom sarees and not silk yarn. According ..... X X X X Extracts X X X X X X X X Extracts X X X X
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