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TMI Blog2005 (3) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... lants were issued with show cause notice on the basis of several statements recorded after investigation and asked to show cause as to why they should not be penalised and the goods viz. Mulberry Raw Silk be required to be seized as the same is prohibited for import under the Import Trade Control Order No. 17/55 dated 7-12-1955 issued under Section 3(3) of the Foreign Trade (Regulation and Development) Act, 1992 and it was found that the appellants had not been carrying the valid import permit and licence. The appellants' case is that the goods were not smuggled ones and they had purchased them from open market in Delhi and it was not of Chinese origin, but of Kashmir origin. The appellant, during the course of proceedings had further chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was also not produced for cross-examination thereby the proceedings have been vitiated. He submits that it is a well settled position when a crucial witness has not been produced for cross-examination, then that portion of the evidence is required to be discarded. It is his submission that when this evidence is discarded then the nature of the goods being of foreign origin is not established. He submits that the Tribunal, in the case of Sajjan India Ltd. v. CC, Lucknow - 1999 (111) E.L.T. 903 (Tribunal) in a similar circumstance has held that the seized Silk Yarn from the appellants were not of foreign origin as there was no foreign marking on the same. The Tribunal had accepted the plea that during the relevant period, the goods were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jan India Ltd. is distinguishable as the statement of the appellant therein was that the goods belonged to him alone and it had been a portion of the consignment imported by him. While in the present case, the facts are distinguishable. He submits that non-providing of Shri Satyanarayana Shetty for cross-examination will not vitiate the proceedings. He submits that once the party has admitted the goods to be of foreign origin, then the burden shifts on them and he has not discharged the same. Therefore, the facts of the case of Anil Gupta v. CCE, Kanpur-I - 2001 (135) E.L.T. 358 (Tri -Del.) would apply to the case in hand. The learned Counsel submits that this judgment is distinguishable as there was marking on the goods while in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt arises with regard to the appellants' conduct especially, with regard to the initial statements and also with regard to the non-production of receipts, yet the fact of the goods being of smuggled ones is required to be established for the purpose of ordering its seizure and for imposing penalty. As the Revenue has not established the seized goods were of foreign origin, the benefit of doubt has to go to the appellants. In the case of Anil Gupta cited by learned SDR, we find that the seized goods had markings of foreign country. Therefore, the burden shifted on the appellants therein to show that they were not of foreign goods. There was corroborative evidence with regard to the goods being of foreign origin also. Hence, the Tribunal hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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