1991 (4) TMI 279 - AT - Customs

Customs appeal ruled in favor of appellant due to lack of proof, penalties deemed inapplicable.

MOMIN BAKSH Versus COLLECTOR OF CUSTOMS

The Tribunal allowed the appeal, ruling in favor of the appellant. It held that the burden of proof rested on Customs authorities, who failed to prove the ... Export of banned items Issues Involved:1. Validity of the show cause notice.2. Admissibility and sufficiency of photostat copies as evidence.3. Burden of proof and the necessity of expert opinion.4. Applicability of the extended period for invoking penalty.5. Examination of shipping bills and the role of customs officers.Detailed Analysis:1. Validity of the Show Cause Notice:The appellant contended that the show cause notice was barred and should have come up by way of revision by higher authorities rather than the Assistant Collector. The appellant relied on decisions reported in 1986 (26) E.L.T. 873 and 1989 (41) E.L.T. 464 to support this contention. The respondent countered by stating that the plea regarding the Assistant Collector issuing the notice was a new plea raised before the Tribunal and that the show cause notice was not barred based on the decision of the Delhi High Court in 1982 (10) E.L.T. 45 and the Tribunal judgment in 1989 (41) E.L.T. 464. The Tribunal found that the question of time bar does not apply because the goods were not seized, and proceedings for penalty can be initiated even after six months.2. Admissibility and Sufficiency of Photostat Copies as Evidence:The appellant argued that photostat copies were insufficient to prove guilt and that original documents were necessary. The respondent asserted that the photostat copies were verified by the US Government, confirming that the signatures on the incriminating documents matched those on the shipping bills and invoices submitted by the appellant. The Tribunal noted that the correctness of these letters could be presumed as they were certified by US authorities. However, the appellant denied writing these letters and contended that the signatures were not his. The Tribunal found that no expert opinion was provided to the appellant and that the reliance on such verification was not in accordance with the law.3. Burden of Proof and the Necessity of Expert Opinion:The appellant argued that the burden of proof was on the Customs authorities to prove that the appellant exported banned items. The respondent contended that in departmental proceedings, strict proof is not required, and the case should be determined by the probability of the case, citing the Supreme Court decision in Bhormull's case. The Tribunal held that the burden of proof lies with the Customs authorities and that in the absence of expert opinion or concrete evidence, the benefit of doubt should go to the appellant.4. Applicability of the Extended Period for Invoking Penalty:The appellant contended that the extended period for invoking penalty could only be applied in cases of willful misstatement, suppression, or fraud, which was not present in this case. The respondent argued that the extended period could be invoked as the goods were not seized, and the proceedings for penalty could be initiated even after a period of six months. The Tribunal found that the extended period could not be applied as there was no evidence of fraud or willful misstatement by the appellant.5. Examination of Shipping Bills and the Role of Customs Officers:The appellant argued that the shipping bills showed endorsements stating that the consignments did not contain jungle cock necks and that the Customs officers had examined and passed the consignments. The respondent contended that there was no evidence to show that these shipping bills were produced before the adjudicating authority and that the charges were built on some consignments. The Tribunal found that there was nothing to show that the charges were built on consignments excluding those examined and passed by the Customs officers. The benefit of doubt was given to the appellant.Conclusion:The Tribunal concluded that the burden of proof was on the Customs authorities to prove that the appellant exported banned items, which they failed to do. The photostat copies of the documents were not sufficient to establish guilt without the original documents or expert verification. The extended period for invoking penalty was not applicable in the absence of fraud or willful misstatement. The examination and passing of the consignments by the Customs officers further supported the appellant's case. Accordingly, the appeal was allowed with consequential reliefs.