Tribunal upholds confiscation of phones and watches, penalty imposed, appeal rejected.

The tribunal upheld the confiscation of both the Nokia mobile phones and the watch movements under Section 111(d) of the Customs Act. The penalty imposed under Section 112(b) was also upheld, and the appeal was rejected.

---

---

Issues Involved:
1. Confiscation of Nokia mobile phones.
2. Confiscation of watch movements.
3. Imposition of penalty under Sections 112(a) and 112(b) of the Customs Act, 1962.

Detailed Analysis:

I. Confiscation of Nokia Mobile Phones:
- Appellant's Contentions:
- The Nokia mobile phones were purchased from M/s. Time Land Trading Co. under invoice No. MOB/LOC/001, dated 16-9-2003.
- The burden of proof lies on the department to prove that the phones are smuggled since they are not notified under Section 123 of the Customs Act, 1962.
- The transaction and receipt of the goods were confirmed by both the buyer and the seller.
- M/s. TLTC showed readiness to cooperate with the department.
- Various factors such as the appellant's oral order, the appellant being the General Manager of M/s. TLTC, and the payment of octroi, among others, are irrelevant.
- The bill of entry indicated the goods were of Korean origin, and the absence of such indication on the goods does not imply they are not covered by the bills of entry.
- The appellant argued that the department should verify the serial numbers from the manufacturers to establish the origin.

- Tribunal's Findings:
- The department sufficiently falsified the appellant's explanation that the goods were legally imported.
- The stickers on the mobile phones, which were supposed to indicate their origin, were missing, and the appellant's explanation for this was not convincing.
- The appellant's contention that the department should verify the serial numbers was dismissed, and the burden to prove the origin shifted to the appellant.
- The department's investigation revealed inconsistencies in the appellant's statements and the actual movement of the goods.
- The tribunal upheld the confiscation of the Nokia mobile phones under Section 111(d) of the Customs Act.

II. Confiscation of Watch Movements:
- Appellant's Contentions:
- The watch movements were purchased from M/s. Rishabh Industries, which confirmed the sale.
- The statement of Popat Rambia of M/s. Shiv Shakti Consumers Co-op. Society, who allegedly sold the watch movements to M/s. Rishabh Industries, was unreliable as he did not appear for cross-examination.
- The panchnama was not properly drawn, and there were discrepancies in the model numbers.
- The seizure procedure was illegal, making the confiscation illegal.

- Tribunal's Findings:
- The watch movements were seized from the appellant's premises, and any procedural lacunae in the panchnama did not vitiate the seizure.
- The Commissioner made multiple attempts to summon Popat Rambia, who claimed he was threatened by the appellant.
- The Commissioner rejected the theory that the watch movements sold by M/s. Rishabh Industries in September 2003 were the same as those sold by M/s. SSCC Society in December 2002 due to the perishable nature of the goods.
- The appellant failed to discharge the burden of proof under Section 123 that the watch movements were not smuggled.
- The tribunal upheld the confiscation of the watch movements under Section 111(d) of the Customs Act.

III. Imposition of Penalty:
- Appellant's Contentions:
- No penalty under Section 112 can be imposed since the goods are not liable to confiscation.
- The order was based on assumptions and was prejudiced.
- Sections 112(a) and 112(b) are mutually exclusive, and penalties under both cannot be imposed simultaneously.
- There was no evidence that the appellant dealt with the goods knowing they were liable to confiscation.

- Tribunal's Findings:
- The Commissioner's findings indicated that the appellant was fully and willfully involved in dealing with smuggled goods.
- The mention of Section 112(a) in addition to Section 112(b) was unintentional and did not affect the imposition of the penalty.
- The penalty of Rs. 15 lakhs was upheld under Section 112(b) of the Customs Act, considering the value of the smuggled goods was Rs. 1.58 crores.

Conclusion:
The tribunal upheld the confiscation of both the Nokia mobile phones and the watch movements under Section 111(d) of the Customs Act, 1962. The penalty imposed under Section 112(b) was also upheld, and the appeal was rejected.

---