TaxTMI 
TaxTMI 
TaxTMI 
1992 (1) TMI 231
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....airing shop of the appellants, M/s. Amco Electronics and recovered the Item No. 2 i.e. Monexe VCP and along with other items they also recovered Item No.7 i.e. Hitachi VCR from the residence of the partners of the said Shop. The Customs Officers also recovered Indian Currency amounting to Rs. 17,700.00 from the person of Shri Biswanath Shaw alias Jaiswal and Rs. 55,200.00 from inside a brief case which was going to be removed from a room in the house of the above partner. Other items were also recovered with which we are not concerned in this appeal as those items are already released in favour of the appellants. After the seizure of the above items show cause notice was issued to the appellants and after the reply to the S.C.N. personal hearing was granted and the impugned order was passed. 3. The learned Advocate, Shri D.N. Bhowmick along with the learned Consultant, Shri K.C. Chatterjee appeared for the appellants and Shri M.N. Biswas, learned S.D.R. appeared for the respondent Collector. 4. Shri D.N. Bhowmick contends that the confiscation of the Cash Amount of Rs. 72,900.00 is not in accordance with law. He contends that there is no proof to show that this represents the sal....
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....ed 15-7-1980. It is stated that under this Notification a tourist of Indian origin is allowed to import as a part of his baggage without an Import Licence, articles on payment of Customs Duty. But they are subject to the conditions as mentioned in Clause 5 of the above Notification. Under Clause-5 the above concession may be allowed by the proper officer if he is satisfied that the items are imported for bona fide use of the passengers and in case of other goods like fire arms and T.V. they can be sold if the market price is depreciated to less than 50% of their market price when new. In this case, he contended that the items at Serial Nos. 2 and 7 have been sold by those owners in whose names the baggage receipts are lying, to the appellants and they had displayed the same in their shop for sale and in view of the above contravention, the goods are liable for confiscation under Section 111(o) of the Customs Act, 1962. He further stated that when the allegations with respect to the ingredients of Section 112 are found in the show cause notice, mere non-mentioning of the sub-clause will not vitiate the order. He also contended that a firm can be penalised under Section 112 of the Cu....
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....se goods and indicating their legitimate import into the country and left without obtaining even a receipt. The belief that the party was indulging in the post-importation offence of trading in goods importing as baggage for commercial gain is a reasonable one. This gives further ground from the fact that out of the so-called owners of the goods i.e. those in whose name baggage receipts had been issued, not one had responded to summons issued by the Customs department. It is obvious that the owners of such expensive items, have rushed forward immediately on hearing about the seizure to the Customs authorities and established their bona fides provided that they were still the owners. This has not happened. There is also the fact that a huge amount of currency totalling Rs. 72,900/- was seized for which there was no entry in the Cash book of the party. Subsequently on a date after seizure the party produced an updated copy of their Account book but even then, kept this amount in a suspense account; in other words, they were not able to relate this money to any specific legitimate transaction. The presence of a number of empty cartons for electronic goods of foreign-make is also of si....
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....oms Act, 1962. In this case, there is no such evidence either circumstantial or direct to show that the above-said amount of Rs. 72,900.00 represents the sale proceeds of smuggled goods. In the decision reported in 1988 (33) E.L.T. 444 (Tribunal) in the case of Malar v. Collector of Customs & Central Excise, Tiruchy, the Tribunal held that the mere possession of currency and an unsatisfactory explanation with reference to acquisition of the same may create a suspicion in the mind of an authority. But that suspicion is not a substitute for proof to hold that the amount represented the sale proceeds of smuggled goods. In such circumstances, we find that the confiscation of the Indian Currency amounting to Rs. 72,900.00 is not in accordance with law and more particularly, in view of the fact that the Account Books provided by the appellants shows that an amount of Rs. 36,937.62 was shown as the balance in hand in the concerned register upto 6-3-1985. But from 6th March, 1985 till the date of seizure the accounts were not written. Therefore, at best it may create a suspicion and that is no ground to confiscate the currency in question. 9. As far as the second point is concerned, we ha....
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....fiscation under Section 111(o) of the Customs Act, 1962. The show cause notice does not say as to what is the contravention alleged by the Department and what is the contravention made by the appellants in this behalf. It also did not state that the appellants had violated the Public Notice No. 27-ITC(PN)/80, dated 15-7-1980. But it is vaguely stated that the goods are liable for confiscation under Section 111(o) of the Customs Act, 1962. 10. The very purpose of issue of a show cause notice is to make the party aware as to what is the exact charge levelled against them so that they may give their explanation in this behalf. Therefore, the show cause notice must specifically say as to what are the contraventions made by them and in which circumstances, they have contravened the same. It should have stated clearly that the appellants had violated the above Public Notice in view of the fact that the owners of the VCR and VCP had sold them to the appellants even before the market prices of the articles in question were not depreciated less than 50% of their market prices when new, as contemplated in the above Public Notice. If such averment was made in the show cause notice, the appel....
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....87." In such circumstances, the appellants are not given such notice to put forth their plea. 11. Section 111(o) of the Customs Act, 1962 reads as follows : "any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer." Therefore, as per this sub-clause it must be shown that the provisions in respect of the goods in question which are exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed, are violated by the appellants. No such allegations are made in the show cause notice. No such findings are there in the Adjudication Order. On the contrary, the Adjudication Order has gone out of the ambit of the show cause notice and confiscated the goods under Section 111(d) of the Customs Act, 1962 without assigning any reasons in this behalf. The learned S.D.R. relied on the decision reported in 1991 (....