9911796707
TMI Blog2017 (4) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... : - The charges made against the appellant are very serious and have not been substantiated by tangible and solid evidences to establish that the imported consignments were fully finished ball bearings as well as were diverted in the local market. The demand solely resting on the retracted statements, cannot be upheld. At best, such statements may raise a suspicion in our minds that the appellant might have indulged in such fraudulent activities - The demand for customs duty needs to be established at least on the basis of preponderance of probability. The said evidence should at least result in the reasonable conclusion in the minds of a prudent man that such allegations are true. Decided partly in favor of appellant. - Appeal Nos. C/959, 961-963/2005 - Final Order No. 52778-52781/2017-DB - Dated:- 11-4-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Shri Prabhat Kumar Ms. Ammu Suresh, Advocates for the appellants Shri S.K. Sheoran, DR for the respondent ORDER Per V. Padmanabhan All the appeals have been filed against Order-in-Original No. 72-2005 dated 29.08.2005 passed by Commissioner of Customs, New Delhi, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational as to why: (a) The old, used, rusted and damaged, ball bearings, roller bearings and taper bearings of various sizes, bushes, found in 568 wooden cases the value of which was declared as ₹ 24,06,899/- in the Shipping Bill No, 1608 dated 23.01.1999, under seizure, attempted to be exported out of India in place of imported ball bearings under 100% E.O.U. scheme and the old, used, rusted and damaged bearings valued at 68,830/- seized from the factory premises, which were meant for export out of India in place of imported bearings of various sizes, should not be confiscated under Section 113(d) and 113(i) of the Customs Act, 1962; (b) The bearings of foreign origin totally valued at ₹ 2,01,94,912/- seized from the Bonded Store Room, which formed the part of 8 consignments of bearings appeared to be illegally imported from Dubai, the bearings of foreign origin valued at ₹ 1,89,400/-, ₹ 3,82,000/- and ₹ 21,82,000/- (totally ₹ 27,53,400/-) seized from the shops and godown should not be confiscated under section 11(d) 111(o) of the Customs Act, 1962 and, (c) The total Customs duty foregone amounting to ₹ 3,84,43,296/- availed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with the plea raised in the reply to the show the cause notice and also did not allow any cross examination prayed for and passed the impugned order as under :- (i) I confiscate, under section 113 (d) and 113(i) of the Customs Act, 1962, the old, used, rusted and damaged ball bearings, roller bearings and taper bearings of various sizes, bushes, found in 568 wooden cases the value of which was declared as ₹ 24,06,899/- in the S/Bill No. 1608 dated 23.01 .99 under seizure, attempted to be exported out of India in place of imported ball bearings under 100% EOU scheme and the old, used, rusted and damaged bearings valued at ₹ 68,830/- seized from the factory premises, which were meant for export out of India in place of imported bearings of various sizes. (ii) I confiscate under section 111(d) 111(o) of the Customs Act, 1962, the bearings of foreign origin totally valued at ₹ 2,01,94,912/- seized from the Bonded Store Room, which formed part of 8 consignments of bearings illegally imported from Dubai, the bearings of foreign origin valued at 1,89,400/-, ₹ 3,82,000/- and ₹ 21,82,000/- (totally ₹ 27,53,400/-) seized from the shops an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1992-97 where ball-bearing and roller bearings of all types are show as freely importable. (f) That as already stated earlier, the goods on import were examined by the Customs Officers and as per their examination report found to contain assorted types of bearings and bearing components as per invoice/bill of entry/ bill of lading, The goods were released on the basis of a certificate issued by the Assistant Commissioner of Customs Bond, Faridabad. (g) So far as the seizure of the defective, damaged bearings valued at ₹ 68,830/- seized from the factory premises on the plea that they were meant for export out of India under section 113 (d) and 113(i) of the Customs Act, 1962. The goods found in the export container which have been valued by the Customs authorities at ₹ 2,65,942/-, are not hit by any prohibition so as to attract the provisions of section 113(d) or 113(i), therefore, the confiscation of the goods is contrary to law; (h) As regards the confiscation of the goods seized from the Bonded Store Room at factory premises, valued at ₹ 2,01,94,192/- and said to be out of consignments of imports (11 containers) but the basis for valuation is not know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt (who was 100% EOU) was that they would import fully finished bearings of various sizes. Said consignments were cleared from Customs bonded into 100% EOU without payment of duty and subsequently diverted into local market. It has been further alleged that to take care of export obligation, the appellant is said to have purchased old and junked ball bearings and exported the same by mis- declaring them as fully finished ball bearings. The record showed that the appellant had undertaken imports of 8 consignments comprising of 11 containers. Inculpatory statements were recorded from Shri Mohan Lal Thapar as well as Shri K.K. Kaura, both partners of appellants unit. Further, both the statements were retracted before the Hon'ble Magistrate. During search of the factory, fully finished ball bearings totally valued at ₹ 2 Crores were found and the same were seized under the belief that these were the bearings imported without payment of duty in the guise of components of ball bearings for use in the manufacture of ball bearings in the factory. Certain quantities of ball bearings were also seized from various dealers on the basis of allegation that these ball bearings were dive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also been ordered for confiscation; on the basis of allegation that they were also part of the goods imported by the appellant illegally. 15. After going through the entire records of the case, we find that the evidence on the basis of which above conclusion has been arrived at by the adjudicating authority is the inculpatory statements given by both, Shri K.K. Kaura and Shri M.L. Thapar, partners of the unit. However, it is on record that both the statements were promptly retracted before the Hon'ble Magistrate. The law is well settled that inculpatory statement which stands retracted subsequently, cannot be made the only basis for establishing the evasion of duty particularly, if such statements are not corroborated by other documentary evidences. We find that the Customs authorities have failed to corroborate the above allegation with any documentary evidence other than the statements. The goods imported through 8 consignments (totally comprising 11 containers) have been cleared by Customs without payment of duty. However at the time of bonding of the goods in the factory of the appellant, the goods have been examined by the respective Bond Officer and found to be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equate. The charges made against the appellant are very serious and have not been substantiated by tangible and solid evidences to establish that the imported consignments were fully finished ball bearings as well as were diverted in the local market. The demand solely resting on the retracted statements, cannot be upheld. At best, such statements may raise a suspicion in our minds that the appellant might have indulged in such fraudulent activities. 16. The demand for customs duty needs to be established at least on the basis of preponderance of probability. The said evidence should at least result in the reasonable conclusion in the minds of a prudent man that such allegations are true. On the basis of available evidences, we are unable to come to such a conclusion. Consequently, the demand of customs duty amounting to ₹ 3.84 Crores needs to be set-aside. 17. The above discussion leads us to conclude as follows:- (a) The confiscation of bearings totally valued at ₹ 2,01,94,912/- seized from Bonded store room of the factory is set-aside. (b) The confiscation of Ball Bearings totally valued at ₹ 1,89,400/-, ₹ 3,82,000/- and ₹ 21,82,000/- (T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
