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TMI Blog2017 (9) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... the handicrafts goods at Annexure-B to the inventory admittedly there is no evidence of such goods being of third country origin and there are also the declared goods as per the Bill of Entry valued at 2,13,522/- and accordingly the confiscation set aside. So far, the undeclared goods being personal effects valued at 4700/- admittedly belonging to R.C. Sharma is concerned, the confiscation set aside in view of the admission by the said R.C. Sharma being an employee of the Government of India and the facts stated by him have not been found to be untrue and further the goods were of very small value and admittedly personal effects. So far, the goods at Annexure-E to the Panchnama being undeclared handicrafts value at 1,45,200/- is concerned. these goods are liable to confiscation but the appellant-exporter, Smt. Kamla Shreshta of M/s Pramila Handicrafts is entitled to redemption, on payment of redemption fine 25,000/-. So far, the two trucks are concerned, there is no finding save and except presumptions that the owners of the said trucks and its staff being drivers and cleaners were knowingly transporting any contraband goods. In this view of the matter, confiscation and redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were prepared which are annexed as to the Panchnama. The details of the recovered goods are as follows: - S.N. Inventory Description of recovered goods Value (in Rs.) Provisions contravened Section under which the goods are liable to confiscation 1 A-I TCO readymade garments i.e. Jeans, Shorts, Uppers, Half Pants, Sports wears, T-shirts, Caps, Head bands, jackets 32,74,945/- Notfn. No.9/96 dated 22.01.96 issued under Section 11 of the Customs Act, 1962 readwith Section 3(2) of Foreign Trade (Development & Regulation) Act, 1992 111(d), (i) and (m) of the Customs Act, 1962 2 A-II Undeclared Nepalese Jackets 33,000/- Section 111 (1) of the Customs Act, 1962 readwith Section 3(2) of Foreign Trade (Development & Regulation) Act, 1992 Section 111(1) of the Customs Act, 1962 3 B Declared handicrafts items used for concealment of undeclared TCO goods 2,13,522/- - 119 of the Customs Act, 1962 4 C Undeclared miscellaneous TCO goods 1,64,500/- Same as SI. No.1 111(d) and (1) of the Customs Act, 1962 5 D Undeclared TCO miscellaneous goods said to be personal effects 4,700/- Same as SI. No.1 -do-= 6 E Undeclared handicrafts items 1,45,200/- Same as SI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsported. 3.3 Smt. Kamla Shrestha the owner of M/s Pramila Handicrafts, Kathmandu appeared before the Customs Authority at Lucknow on 11.04.2008 and stated that her firm is engaged in manufacturing of handicraft items and trading of the same and also manufacture garments. They regularly sold goods to M/s Goel Arts & Crafts, New Delhi and M/s Impexco India, New Delhi. Further stated that the goods as per Bill of Entry No.493/2007-08 dated 11.03.2008 belong to her firm. It only handicraft items were manufactured in the factory and the garments were purchased from M/s K.V. Felt & Bull Craft and M/s Fashion Pvt. Ltd., Kathmandu. The miscellaneous TCO garments were loaded due to inadvertent mistake at the time of loading of the goods, that the value of seized goods shown in inventory made under Panchnama, was correct to her satisfaction that generally the order was placed by the buyer telephonically and payment is to be done by cash or by bank draft to her firm. 3.4 Shri B.D. Goel, proprietor of M/s Goel Arts & Crafts, New Delhi in his statement dated 07.05.2008 stated that his firm had made import of handicraft items from M/s Mandla Arts & Crafts, Kathmandu in the year 2002 and no im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lese handicraft items and knitted garments declared in the Bill of Entry valued at ₹ 2,13,522/- used for concealment of the smuggled TCO goods were liable to confiscation at the same were used for concealing the TCO goods, that the undeclared Nepalese garments, personal effects and miscellaneous goods (listed in part A2, D & E of the inventory) used for concealment of the smuggled TCO goods were liable to confiscation under Section 111(d), (l) & (m) read with Section 119 of the Customs Act, 1962. The trucks each valued at ₹ 4,00,000/- used as conveyance for illegal importation of miscellaneous goods and transportation of the same should not were liable to confiscation under Section 115(2) of the Act and further the various persons involved penalty was proposed under Section 112 of the Customs Act. 5. So far the truck owners and their staff namely drivers and cleaners are concerned, they pleaded both at the time of Panchnama and statements recorded as in the replies that they had taken the vehicles to Nepali Bhansar on 10th March, 2008 on the directions of the owners where the goods were loaded on the truck, that the clearance of the goods were allowed by Land Customs S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of goods that Smt. Kamla Shreshta instructed him to keep the foreign origin goods in the truck. Further in his reply response to show cause, Shri Hari Kumar Thakuri have stated that the statement dated 17.03.2008 was not a free statement but dude the reason that he was in custody of DRI officers from 11.03.2008 to 17.03.2008 and under such pressurize conditions, he wrote what was dictated to him. Further stated that it is not true that Smt. Kamla Shreshta to the proprietor of M/s Pramila Handicrafts dispatched the goods of foreign origin. He further stated that they appeared to be some mistake which occurred at the time of loading of the goods and some packets of garments which were for local consumption and were in packed condition was inadvertently loaded on the truck. He further stated that the Smt. Kamla Shreshta was suffering and bedridden for the last six months and was unable to attend the business regularly and diligently. He further stated that there appears to some mistakes, which occurred but there was no deliberate attempt to dodge the law and/or contumacious conduct on their part. He further stated that on some goods, Chinese labels and labels of other countries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and the retraction subsequent in his reply has been rejected relying on the ruling of Hon'ble Supreme Court in the case of Surjit Singh Chabra holding the same to be in afterthought. The learned counsel urges that Ld. Commissioner have erred in ignoring the overwhelming evidence being the medical records of the proprietor - exporter Smt. Kamla Shreshta; the recovery of the labels at the time of preparation of Panchnama and from the consignment as well as evidence led being the purchase documents and certificates of the suppliers on the goods. Further there is no test report obtained by the learned Commissioner thus, holding the goods particularly garments to be of 3rd country origin is basically presumptive and not based on any cogent evidence. Further, the evidences led have been rejected summarily without any proper reason assigned. She further urges that the tags or labels on the garments are not a conclusive proof of the garments being of third country origin in view of the craving in India for foreign-made goods. So far, the goods of part-C of the inventory valued at ₹ 1,64,500/- which are stated with undeclared miscellaneous third country origin goods, it is stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any contraband goods and hence order of confiscation and redemption fine on them is totally unsustainable. She also prays that the penalties on various persons have been imposed in a mechanical manner without there being any acting role on their part in the alleged irregularities. 7. The learned AR for Revenue relies on the impugned order. He also points out to the statement of Mr. R.C. Sharma wherein, he has denied the ownership of the goods at Part-C of the inventory against the claim of the appellant-exporter. Thus, it appears that the appellants have been trying to make various place by way of cover-up and/or afterthought and accordingly the appeal is fit to be dismissed 8. Having considered the rival contentions, I find that in view of the evidences discussed hereinabove and the findings of the learned Commissioner that there is no conclusive finding as to the garments seized being of third country origin. So far, the goods being undeclared in the Bill of Entry being admitted in Nepalese Jackets its value at ₹ 33,000/- the declared garments valued at ₹ 32,74,945/- at the Annexure-A1 to Panchnama and I hold that the confiscation is bad and set aside the same al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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