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TMI Blog2006 (8) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) One Mr. Rajeev Sabharwal was apprehended by the Customs Officers at Sahar Airport on 8-11-2003 when he arrived from Singapore and search was carried on the person and baggage. The Officers have recovered 16 Rolex Watches concealed in his baggage. On the basis of the statements recorded from Mr. Rajeev Sabharwal and others it is disclosed that he intended to sell 16 Rolex Watches to the appellants herein. During the course of further investigation, the officers have also searched the premises of the Time Watch Makers and seized 17 Rolex Watches on the belief that these Watches have been smuggled. Thereafter, two Show-Cause-Notices were issued. The First Notice was issued to Mr. Rajeev Sabharwal and Randeria Brothers (Appellants Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these form part of the consignment of 22 watches which were earlier imported vide Bill of Entry dated 29-7-2002 by M/s. Time Watch Makers, Dadar......... 113. ......... For it there was an error, the importer would have brought it to the notice of the supplier much earlier as these 3 watches were forming part of a consignment imported in 29-7-2002 ...... 5. The allegation made in the second Show-Cause-Notice proposing confiscation of 17 watches was that 3 of the watches bore upon them serial numbers which differed from the serial numbers shown in the packing lists which accompanied the invoices under which these watches were sent to the importer, Time Watch Makers, by their supplier Rolex S.A. of Geneva. The packing lists also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f significance and is reproduced below in full. Dear Sir, Referring to our last telephone conversation, we hereby confirm that on your last consignment under Invoice Number 426.947 dated 10 June 2004, the Packing List has not contained any serial number. In fact, errors in serial number identification have resulted in mistaken lists. We hop to remedy the computer glitch to solve the problem. In any case, this information is not vital since our watches have a green plastic tag clearly showing the serial number of each single watch. Trusting that this information is of good held to you, we remain, With best regards, Sd/- A. Reverdin Rolex Geneva. 6. It was submitted by these appellants before the Commissioner that the bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment of 22 watches. Import of the goods, therefore, has shown to have been covered by the Bills of Entry. Hence, Time Watch Makers has discharged the burden of proof cast upon it. At the relevant time, the import of watches was freely permissible, and they were not in the negative list to the Import Policy. The provisions of clause (d) of Section 111 would not therefore have application. Penalty in any event could not be imposed on Jamshed Randeria. 8. The Departmental Representative reiterates the reasoning given in the Commissioner s Order. 9. The question as to why the difference in serial numbers had not been referred to Rolex earlier, shortly after the consignment was imported in late July 2002. After the packing list was sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessary for any commercial or accounting purpose. 10. The case made out in the notice in regard to these watches did not proceed by drawing an adverse inference from the fact that the discrepancy was not earlier brought to the notice of the supplier. The notice alleged that the packing list copies were not in fact supplied by Rolex, but were generated by Randeria locally to concoct a defence for his smuggling. The Commissioner has, in Paragraph 118 of his order, declined to confirm this charge, noting the absence of evidence. 11 From the explanation furnished by Randeria, it is clear that the presence or absence of serial numbers on the packing lists was not materially significant in relation to the purchase, import, storage and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reject the claim of legal importation under specified bills of entry made by the importer, it will have to be concluded that the burden of proof with regard to these watches has been discharged. These watches stand on the same footing as the other 14 watches in respect of which the Commissioner has said that there is no evidence of their having been smuggled. Therefore, the order of confiscation cannot be sustained. Consequently, imposition of penalties also cannot be sustained. 13. There is another aspect to the matter. The watches have been confiscated under clause (d) of Sec. 111. This clause applies to goods the import of which is prohibited. Import of watches could be freely made without any condition or restriction by any person f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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