9911796707
TMI Blog2022 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... both the Appellants is assailed in these two appeals. 2. Facts of the case, in a nutshell, is that 684 cartons of foreign origin chocolates and other eatables mainly of Italy, Poland, USA, UAE etc. were seized on dated 14.09.2017 by the Customs under Panchanama (seizer list) from the godown of the proprietorship firm M/s Food World of Mr. Bashir Khan (Appellant-I) who owned duty liability on chocolates and agreed for payment of Customs duty. His son i.e. Shoaib Bashir Khan (Appellant-II) is proprietor of another concern called M/s. Authentic Stuff General, also having same Registered address as M/s. Food World, submitted a letter through his legal Counsel on dated 03.10.2017 claiming ownership of the seized chocolates which he stated to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Appellants are before this Tribunal in two separate appeals in assailing the legality of the said order passed by the Commissioner (Appeals). Both the appeals are taken up together for passing of a common order. 3. During the course of argument, learned Counsel for the Appellants Mr. D.H. Nadkarni submitted that three statements of Appellants Mr. Bashir Khan were recorded by the Department and two statements of his son were also recorded but the Department had placed reliance on the statement recorded at the first instance and proceeded against the Appellant though Mr. Bashir Khan statement given on 17.11.2017 was explicit and detail one that found support from the statement of its own son recorded on 07.11.2017 but the statements w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GST sale invoice, he submitted that there is no second conclusion that can be drawn to the fact that the seized chocolates were all duty paid chocolates cleared by the Customs Department itself after being imported to India and the minor discrepancy noted in the Order-in-Original and Order-in-Appeal concerning different descriptions of the chocolates is in-significant for the reason that only in respect of two items some local names are entered in the tax invoice evidencing sale of chocolates and other eatables but still those items can be correlated as against Splenda Sugar cube, Splenda sweetner in sachets and against Foster Caramel Creme, caramel has been mentioned. Further in citing judicial decisions reported in 1990 (48) ELT 271 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate i.e. on 14.09.2017, clearly established that those were manufactured documents concerning which statement of the other Appellant namely his son Mr. Shoaib Bashir Khan recorded on 09.10.2017 and 11.10.2017 are relevant as he admitted that back dated signatures were obtained from him. Further verification of the address of importer M/s. S.D. Enterprises by the concerned Inspector of the Respondent-Department after non-delivery of postal notices sent through Post clearly demonstrate that no such importer was in existence for which the Appellants are liable for improper importation of goods which were rightly confiscated and sold on auction after Appellant-I did not seek provisional release of its in his favour and therefore, interference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity as well as Commissioner (Appeals) both the proprietorship firm of Appellant-I and Appellant-II are registered in the same address where the godown is situated. Going by the date of adjudication order confirming Customs duty proposed in excess of the declaration made by Appellant M/s. S.D. Enterprises, it was passed on 12.09.2017 and the same was invoiced for sale on 14.09.2017 that was being seized by the Customs Department on the same day and statement of Appellant-I was recorded on its next day. Therefore, I find no reason in disbelieving the Appellant-I's version that goods were kept in godown for last 3, 4 days since it must have been released between 12th September to 14th September and might have been brought to the Appellant's go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prises is not in existence as a business entity is unsustainable in law and facts since it had not only undergone an adjudication process after filing the Bills of entry against the goods in question besides the fact that it had issued local tax invoice to Appellant-II against sale of those goods. It is immaterial also for the purpose of determination of the liability of Customs duty as to if the subsequent purchaser only knew the importer by name or if he had never seen the importer. Be that as it may, it is a settled principle of law that documentary evidence would outweigh oral evidence and exclusion of oral evidence by documentary evidence is well recognised in case of "disposition of property" under Section 91 of the Indian Evidence Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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