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TMI Blog2022 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... er to 14th September might be through a transit permit or challan. Further the godown is owned by both father and son having two separate proprietorship concern. Exclusive and conscious possession of the Appellant-I and prosecuting him for such possession as well as holding him responsible, so as to confirm demand of duty against him alone, is not sustainable in law since the other Appellant is not only claiming ownership of the goods and explaining his liability concerning local purchase by way of production of tax invoice issued by M/s. S.D. Enterprises, in whose favour the goods described in the tax invoice with many other items were also directed to be released through an adjudication order issued by the Assistant Commissioner of Customs just two days prior to seizer of the 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the adjudicating authority namely the Additional Commissioner of Customs, JNCH, Nhava Sheva on dated 12.09.2017 confirming the enhanced assessment. Appellant-II also submitted local purchase Tax Invoice No. 012/2017-18 dated 14.09.2017 evidencing purchase of the foreign chocolates from the importer M/s. S.D. Enterprises. Statement of Appellant-I Mr. Bashir Khan was initially recorded on 15.09.2017 and Appellant-II Mr. Shoaib Bashir Khan on 09.10.2017. Discrepancy having been noticed in the statements recorded under Section 108 of the Customs Act, 1962 coupled with non-availability of the importer in its registered address resulted in issue of show-cause notice on 09.03.2018 proposing duty, penalty etc. under various provisions of the Customs Act that was subsequently adjudicated and resulted in confirmation of duty demand of Rs.3,55,139/- on the value of seized chocolates with interest alongwith equivalent penalty on Mr. Bashir Khan under Section 114A and penalty of Rs.30 lakhs on both the Appellants under Section 114AA of the Customs Act. Appellant succeeded in the appeal filed before the Commissioner (Appeals) by way of reduction of penalty from 30 lakhs to Rs.5 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Tribunal) in the case of Kamrup Industries Vs. Collector of Customs Central Excise and reported in 1997 (95) ELT 440 (Tribunal) in the case of Metec Asia Pvt. Ltd. Vs. Commissioner of Customs (P), Mumbai concerning burden of proof to establish that goods are smuggled goods so as to cover it under Section 123 of the Customs Act or Section 11B of Chapter VIA of the Customs Act is on the Respondent-Department since the goods in questions had not been covered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were having special knowledge about imported chocolates and eatables and when a court believes an existence of the fact it can be treated to have been proved and there is no requirement of establishing proof beyond reasonable doubt by the Revenue- Department with mathematical precisions. 5. I have heard submissions from both the sides and perused the case record, relied upon case laws and relevant provisions of law. Bereft of unnecessary repetition of the factual scenario, the only thing that is required to be examined here is whether the chocolates and other eatable that were stored in the godown of Appellant-I was to be considered as being stored with his full knowledge to establish conscious possession of the Appellant-I of those goods and if, at all those were none duty paid imported goods? As could be noticed from the facts and orders passed by the adjudicating authority 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 Act. I am, therefore, of the considered view that Appellants have succeeded in their appeal by substantiating payment of Customs duty on imported goods by way of production of the copy of the Adjudication order which were seized from them subsequent to the transfer effected through sale invoice. Adjudication order stands in the footing of a public document as per the Indian Evidence Act, 1872 that bears proof of importation of goods by the importer through Customs for which demanding duty again and imposing penalty on these Appellants is improper and unsustainable in law and facts. Hence the order. THE ORDER 6. Both the appeals are allowed and the order passed by the Commissioner of Customs (Appeals), Mumbai-III vide Order-in- Appeal No. MUM-CUSTM-PREV-APP-274/19-20 dated 28.06.2019 to the extent of confirmation of Customs duty, interest on the Appellant No-I proprietorship firm and penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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