TaxTMI 
TaxTMI 
2006 (8) TMI 402
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....ed 13-3-1997 and therefore, liable for confiscation having been smuggled into India without payment of duty? (B) Whether the Revenue has discharged the burden of proof to show that the said goods are smuggled as the same are non-notified under Section 123 of the Customs Act, 1962? (C) In the event the answer to question (a) is in the negative, the answer to question (b) is in the affirmative, whether the said goods are prime quality or not? (D) Whether the penalties imposed have been correctly imposed? (ii) Re : (A) above : The said goods were detained on 27-3-1997 and seized on 13-5-1997 along with 68.01 MTs of Stainless Steel Sheets (hereinafter referred to as "the said sheets") in a godown at Kalamboli, Navi Mumbai. At the time of seizure, the said goods were found packed in 11 wooden boxes. Labels were found stuck on each of these wooden boxes. Two such sample labels are at Pages 83 and one on Page 219 of the Appeal Memo. The labels, inter alia, contained the following details : (i) Order No. (ii) Serial No. and Wei....
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....Paper Book and the enclosures there in submitted at the time of hearing before the Appellate Tribunal. The manufacturer has explained the reasons for the dimensions indicated on the label. The SGS Report at the port of loading also bears reference to the same shipping marks and numbers which are found on the Bill of Entry which in turn, correlates to the labels on the wooden boxes of the said goods at the time of seizure. The Respondent-Commissioner has not considered these relevant documents, and therefore, the Order of confiscation and penalty is not sustainable. (iii) Re : (B) above : It is admitted that the said goods are not notified under Section 123 of the said Act. In such a case, the burden to prove that the goods are smuggled is on the Department. This burden has not at all been discharged in the present case. Except for finding faults by looking at the documents in isolation and not reading all of them together in a series, the Respondent-Commissioner has not shown why the said goods are smuggled. Reliance is placed on the following decisions/judgments in support of the submissions that since the said goods are not notified and the Department has not discharge....
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....sp; The said goods have been imported without warranty and on NO claim basis which as certified by the expert from Salem Steel Plant vide letter which is at pages 222. cannot be considered as prime quality. This letter reflects the commercial and trade understanding of the words "prime quality" and in view thereof, the said goods cannot be considered to be prime quality. As the said goods are not prime quality, the value thereof cannot be determined on the basis of price of prime quality material. Consequently, the duty demanded on the value of prime quality goods is illegal and bad in law. (v) Re : (D) above : In any view of the matter, the show cause notice dated 14-8-1997 does not invoke the provisions of Section 114A of the said Act and hence, the penalty imposed thereon is without jurisdiction and without authority of law. The impugned Order does not in any manner bring out the role played by Shri Vinit Dhupia and therefore, the penalty imposed on his is liable to be set aside'. 3. The arguments made on behalf of the Department are as follows : " (i) This is a remand matter and the limited purpose for which case is remanded is re-....
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....d 0-4/4.0 x mixed 1000/1550 x mixed 2400/4000. The net weight, gross weight as well as grade and condition of goods have been shown against each entry. The "circles" in the present case were of 8.75" diameter and 1.4 mm thickness. Therefore, the evidences available on record show neither the dimensions mentioned therein, nor the condition. It is evident that the dimensions relate to thickness, length and breadth of the goods shown in the packing list and NOT to any "Circles". (ix) In view of the above, the notices contention that S.S. Circles are covered at page No. 3, Sr. Nos. 13 to 23 of packing list D. 378, dtd. 10-3-97, is a travesty of facts; and clearly misleading. The report of the metallurgical expert reads "circles (lot no. 330 of M/s. Transman International Ltd.). The surface of the circles were found free from any rolling or other surface defects, which appear to be of "prime quality". (x) The test report given by Steel Authority of India on 12-4-97 reads - "The thickness measured were uniform and specific range of 1.39, 1.395 and 1.40 mm. The mechanical properties are within the standard ASTM tolerance. Surface roughness is as per internationally accepted....
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....dence that the appellants had imported 101.817 MT + 14.523 MT of material. In other words, it was, necessary to trace the movement and disposal of the entire quantity of the imported material to demonstrate that the appellant did not only import 101.817 MT of Stainless Steel Sheets but much more than that. The evidence which has been placed before us shows that the department has traced only part of the material i.e only 68.01 MT + 14.523 MT. On the other hand, the appellants have been able to show that the goods seized bear the Markings and Numbers which tally with the details in the import documents including the Packing List. They have also argued that the Docks Appraiser physically examined one of the packages of the Packing List No. 18 which contained the impugned Circles. In view of these facts and the fact that no evidence has been gathered to show that the appellants imported more quantity than what has been declared, the benefit of doubt goes to the appellants, in regard to the charge that 14.523 MT of Stainless Steel Circles were imported in addition to the declared quantity of Stainless Steel Sheets. 5. The appellants have also shown correspondences from the supp....