9911796707
TMI Blog2008 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sundaram, Advocate, for the Appellant. Shri S.G. Dewalwar, SDR, for the Respondent. [Order] - All the above appeals are arising out of a common Order-in-Appeal dated 29th October, 2007 passed by the ld. Commissioner of Customs (Appeals), by which the order-in-original dated 29th September, 2006 passed by the ld. Jt. Commissioner of Customs, in favour of the appellants herein, was set aside and the matter was remanded for de novo adjudication. 2. I have heard both the sides at length. 3. The brief facts of the case are as follows (i) Certain goods were detained allegedly on 2nd/3rd December, 1999 by the Officers of Thane Municipal Corporation. There is no panchnama evidencing the detention of the goods on the said date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on being shown the photographs of the packages identified the markings on the outer packing of impugned goods, as those on the goods taken over from Kurla as denoted on the Railway Parcel Way Bill receipts. (vii) Relying on these evidences, a Show Cause Notice dated 31-5-2000 was issued proposing confiscation of the impugned goods detained at Thane and calling upon the Appellants to show cause as to why penalty should not be imposed upon them under Section 112(a) (b), (i) and (ii) of the Act. (viii) The appellants filed their replies to show cause notice. They were exonerated by the ld. Jt. Commissioner i.e. the adjudicating authority by a detailed order dated 29th Sep., 2006, and it was held mainly on facts that the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anything wrong with the same. It is their contention that to set aside the order-in-original the ld. Commissioner (Appeals), ought to have given findings against the legality or otherwise of the order-in-original, which he has not done. There has been no independent application of mind and the impugned order is bereft of any cogent reasons which could have justified the setting aside of "detailed and reasoned order" passed by the adjudicating authority after considering and discussing the entire gamut of evidences relied by the department, by way of detailed order running into 83 pages. The appellants submitted that the impugned order-in-appeal needs to be set aside and the Order-in-original shall be upheld on this Ground alone. 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The appellants have drawn my attention to the fact that the statements and evidences pointed by the Commissioner (Appeals) were dealt in extenso in the Order-in-original. It is not the case of the Revenue that there had been any impropriety or illegality in the Order-in-Original. The appellants relied before me on the judgment of Hon'ble Supreme Court in N.J. Suraj v. State - (2004) 11 SCC 346 regarding Identification Parade, wherein it was held that- "3 In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon It was contended that in the instant case the I-Card register bearing photogra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted that the Commissioned (Appeals) may be directed to hear the Revenue's Appeal afresh in a time bound manner. 11. After considering the submissions of both sides and after going through the adjudication order. Revenue's appeal against the same, order-in-appeal and the instant appeals. I am of the considered view that the revenue has not discharged its burden in the instant case to prove smuggled nature of the goods. There is no iota of evidence to suggest breech of any customs barrier. Since the smuggled nature of the seized goods has not been established, therefore there cannot be any question of confiscation and consequent imposition of any penalty, whatsoever. Though the matter can be disposed of on this short point, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are legal and proper in the facts and circumstances of the case. After careful perusal of the proceedings, I am convinced that each and every issue was considered in extenso by the ld. Adjudicating Authority in its order-in-original. 15. In my considered view the statements of witnesses cannot be accepted as a gospel truth in absence of material corroboration, more so when the statements of the appellants themselves are exculpatory. Admittedly, there are enough inconsistencies in the alleged spot panchnama drawn by Shri Saraf. The findings of the adjudicating authority are elaborate, legal and proper. The Revenue failed to show any averment directed to be considered by the Commissioner (Appeals), which was not already considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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