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TMI Blog2001 (5) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... along with Indian currency of Rs. 4,05,000/-. 2.Statements of the employees of M/s. Tiptop were recorded. The statements of employees of M/s. Marks Company who sent watches to Tiptop were also recorded. The employees stated that repair works were undertaken and that the spare parts were given by D.D. Randeria and his son. 3.Within a fortnight of the seizure D.D. Randeria in his letter stated that the watch parts were locally acquired and most of them were purchased from Customs Auction in the first sale. 4.One Shri C.N. Tolia in his statement claimed that he was routinely purchasing watch parts from the Customs auctions and supplying them to some other companies including M/s. Marks Co. and M/S. Time Watch Works owned by D.D. Rand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, Senior Counsel appearing along with Shri Arun Mehta, Advocate. Shri B.K. Choubey, JDR, appeared for the Revenue. 9.We have carefully considered the submissions. Section 123 of the Act have been invoked in these proceedings. The basic tenet of the law is that the person making an accusation has to support his charge with evidence. Where no evidence is produced or where the evidence produced is rebutted by the accused, confiscation cannot be adjudged. Section 123 makes an exception and shifts the burden of proof on to the offender. This provision has been interpreted in a number of judgments. 10.One of the pre-requisite is that the offending goods should have been notified under this Section. Entry at Sr. No. 9 of the Notification 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation to be so charged, evidence has to be shown that the currency was the actual receipt of the sale proceeds of smuggled goods and where the seller had knowledge that the goods sold by him were smuggled. In the present case no evidence has been placed in fulfilment of this requirement. Even it is to be assumed that the parts were smuggled in nature these parts were not sold. These parts were contained in the watches which were received for repair. The total consideration received for repairs would include cost of the parts as well as the labour charges. Shri D.D. Randeria was a partner in 3 companies which had a very substantial turn over. The quantum of currency found in his possession was not unusually large. There was no statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or evidence to be led by the Department. 16.Mr. Randeria is a person engaged in repair of watches. The bulk of the watches in use in India are of foreign origin. From the 70's to the 90's M/s. H.M.T. was the only company making watches in India and from 90's M/s. Titan came to the scene. There were other small manufacturers but their supply was of no significance. Therefore, for servicing the watches, parts had to be imported. Parts were also smuggled. Some of the smuggled parts were seized by the Customs and were ultimately sold by the Customs Department in auctions. The goods sold by the Customs in such auction could thereafter be readily sold without any further restrictions. The watch parts imported and cleared under the Bills of Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified under Section 123 has not been discharged, and these parts are therefore not liable for confiscation. 19.We now come to the parts covered under 123 of the said Act. The evidence produced by the Appellants is common. In internal page 23 of the order the learned Commissioner has recorded that one of the allegations in the show cause notice was that the spare parts and tools bearing the brand name 'Rado' were clandestinely imported. In the very next sentence the Commissioner admits that there was no documentary evidence to substantiate this charge. The allegation that some of the parts were illegally imported was refuted by Shri Randeria. We have earlier discussed the status of evidence of the other watch parts, movements, etc. whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce eclipses his deposition against Randeria. In page 27 of his order the learned Commissioner has branded Tolia as an aidor and abettor of Randeria and has accused him of making false claims. This has led to imposition penalty on Tolia also. 21.Even where the burden of proving licit importation is cast upon a person that burden cannot be discharged by him by tendering documentary evidence of importation of each single item. For such burden to be discharged it is generally sufficient for him to show that all such goods were importable, were available for sale, were sold and purchased and were acquired by him. There would of course be exceptions to this general statement. Where the quantity under seizure is very large, or where the goods be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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