TaxTMI 
TaxTMI 
2013 (4) TMI 87
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....r thing in his opinion would be useful or relevant to any proceedings under the Customs Act, 1944? 3. This court had issued a notice on 20th August, 2011 and on 15-6-2012 after briefly recording the question, we directed respondents to produce the original record. The reply affidavits by respondent Nos. 1 to 4 have been filed initially on 28th September, 2011 and after said order, on 13th July, 2012. 4. Shri Chandak submits that warrant for search issued under Section 105 shows satisfaction record by one D.S. Mane, Assistant Director, while the files produced does not reveal any such satisfaction reached by that Officer. He points out that there, satisfaction is reached by two other persons, namely, Additional Director and Additional ....
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....rations. He places reliance upon the judgment of the Apex Court reported at JT 1988 (3) SC page 732 = 1992 (59) E.L.T. 201 (S.C.) (Indru Ramchand Bharvani v. Union of India), to urge that facts there are identical. 6. Though initially some effort was made by Advocate Chandak to show that on 11-12-2010, when the summons was issued to petitioner securing the presence on 14-1-2011, no proceedings were pending under the Act, Learned ASG has invited our attention to signature of Senior Intelligence Officer on it to show that it is actually issued on 11-1-2011 i.e. after search which was conducted on 21st December, 2010. 7. Perusal of the document produced before this court alongwith affidavit reveals that there was information with the Dep....
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....ed approximate duty which could have been detected is valued at Rs. 50 Lakhs. The list of officials participating in the operation is given thereafter. Name of petitioner is at Sr. No. 2 in the list of 2 concerns/persons. Shri Mane has simply signed this note like two other officers. 8. Section 105 of the Customs Act, reads thus :- "105. Power to search premises - (1) If the Assistant Commissioner of Customs or Deputy Commissioner of Customs, or in any area adjoining the land frontier or the coast of India an office of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceed....
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..... The said intelligence report contains only last paragraph which is different than the proposal for search submitted. It is mentioned that petitioner is maintaining manual records in the form of register/note books containing details of such purchases and sales of MS TMT Bars. This material or possibility is not reflected in the note and authorities who have granted authorization also do not refer to it. 9. In fact, the first authority competent to search has not said anything and if it is presumed that Shri D.S. Mane had that authority, he has not used that power or authority but he has placed the file for perusal and approval before the higher authorities, namely, Additional Director. Additional Director also only suggests grant of pe....
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.... that Shri D.S. Mane has not authorized any such search and for reasons best known to him, he placed the alleged material before his superior, namely, Shri Chandan and that officer, in turn, placed the matter before still higher authority, namely, Shri Chaturvedi. 11. The intelligence report dated 20-12-2010 does not show who has received alleged information. We are not concerned with the person outside department who has furnished that information to the department. The Officer or employee in the department who got that information is not specified. Whether it was Inspector, or then, Senior Intelligence Officer, or then, any other Senior Intelligence Officer, who signed that report, got that information; or then, it was somebody else, i....
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....smuggled goods? (2) Assuming that Section 123 applied and burden of proof was on the appellants, whether the Tribunal should have held that the appellants had discharged this burden by tendering affidavits of persons claiming ownership of the seized diamonds." The proceedings were then transferred to Delhi High Court. In para 12, the Honourable Apex Court has accepted the finding of High Court that there was evidence to presume that goods in question were smuggled. Para 13 shows that the stock found in possession of the petitioner was much more than the stock reflected in the stock book. It is in this background that the Honourable Apex Court has appreciated the controversy. 13. We find that the issue is squarely covered by Divisio....