TaxTMI 
TaxTMI 
2015 (2) TMI 128
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....ed broadcasting/telecasting equipments. The appellants were in possession and using 53 such equipments. These items were purchased from the local market and some of the items were also obtained by them on lease/hire/loan basis. The said equipments were detained under valid mazahar along with the Annexure showing the list of items. On verification of the records and documents and upon satisfaction on licit nature of the import, 37 items were released subsequently. For the remaining 16 items, further investigations were carried out by DRI and another 9 items were also released to the appellant subsequently, on production of valid proof of documents of the licit import. 3. Show Cause Notice dt. 25.6.99 was issued to the appellant as well as to other co-noticees for contravention of the provisions of Section 11 and Section 111 (d) of Customs Act, 1962 for the illicit import and possession thereof of the equipments which have been brought to India without payment of appropriate Customs duty. The Commissioner of Central Excise (Adjudication) vide impugned order dt. 31.3.2008 ordered for confiscation of the 16 items and imposed redemption fine under Section 125 and also imposed penalti....
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....tral Sales Tax. They have made payments to the dealers or owners only by way of cheque and they have purchased the goods under valid invoice/challans from the respective dealers. Since the items were purchased from the dealers/local market under invoice and challan, they cannot be asked to submit the documents pertaining to proof of licit import of goods. The Commissioner confiscated 16 items on the ground that as there was no evidence of proof of illicit import. He submits that all these 16 items are broadcasting/telecasting equipments and these imported goods were not notified goods under Section 123 of Customs Act. Therefore, the burden of proof is on the department to prove the illicit nature of import. The department has failed to discharge the burden of proof. He further submits that they had no reason to doubt any purchase/lease/loan from the dealers, they have acted bonafidely. In the absence of burden of proof of licit importation by the department, confiscation of the goods by the adjudicating authority is not sustainable. 8. Since the goods are not liable to confiscation, redemption fine imposed under Section 125 is not sustainable. He further submits that imposition ....
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....endment in Section 28 of Customs Act in the Finance Bill 2011. He relies on the following decisions :- (i) Bharti Airtel Ltd. Vs CC Bangalore - 2012 (286) ELT 270 (Tri.-Bang.) (ii) Sushil Agarwal Vs CC Mumbai - 2012 (283) ELT 377 (Tri.-Mumbai) 12. On merits of the case, Ld. AR submits that the DRI had reasonable belief that the imported goods found in M/s.Vijay TV Ltd. were of foreign origin and those goods were not legally imported. The appellants were not able to produce any documents for the proof of importation in respect of 16 items. Detailed investigation was conducted by the investigating officers based on the information provided by the appellant, dealers. The ultimate investigation led to prove that the persons were not existed. Therefore, the 16 items are liable for confiscation. The department has investigated every evidence. Therefore, the initial burden of proof of illicit import of these goods has been discharged by the department. Therefore, the onus shifts on the appellants to prove their case. He furt....
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....d I proceed to discuss the issues limited to these appellants only. 16. On the preliminary objection raised by the learned advocate for the main appellant, M/s.Vijay TV their contention is that ADG, DRI is not the proper to issue SCN and relied the Hon'ble Apex court judgment in the case of CC Vs Sayed Ali (supra). I find that this issue is no longer in dispute consequent on retrospective amendment introduced to Section 28 of Customs Act wherein sub-section (11) has been inserted w.e.f 16.9.2011. The Sub-section (11) is reproduced as under :- Notwithstanding anything to the contrary contained in any judgment, decree, or order of any court of law, Tribunal or other authority, all persons appointed as officers of Customs under sub-section (1) of Section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section. In view of the above legal provision, the SCN issued prior to 6.7.2011 by the officers of Customs include ADG, DRI and he is the "....
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....ection 111 (d). 19. One of the main contention of all the appellants is that the impugned goods are not 'prohibited goods' under the Customs Act. Therefore, the same are not liable for confiscation under Section 111 (d) of Customs Act. In this regard, it is relevant to state that the term "prohibited goods" defined under the Customs Act is not necessarily to mean the absolute prohibition of the import but it is to be considered as "prohibited goods" if the prescribed conditions under the Customs Act or any other law were not complied for importation of the goods. Even if the goods are not notified under section 123 of the Act, the goods are liable confiscation if they have contravened any of the provisions of the section under Customs Act. This issue has been settled by the Hon'ble Apex Court in the case of Om Prakash Bhatia Vs CC Delhi (supra). The Hon'ble Apex Court upheld that confiscation of the goods attempted to be improperly exported under Section113 and discussed the issue in depth on the word "prohibition". The relevant paragraphs are reproduced as under :- "8. Further, Section 2....
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....That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression 'any prohibition' in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions 'prohibiting', 'restricting' or 'otherwise controlling', we cannot cut down the amplitude of the word 'any prohibition' in Section 111(d) of the Act. 'Any prohibition' means every prohibition. In other words all types of prohibitions. Restrictions is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues." 20. It is evident from the above order that the word "prohibition" means even in the case of non-notified goods any contravention of the provision of the section is to be considered as "prohibited goods". While upholding the confiscation under section 113, the apex court relied its own decision in the case of Sheik Mohd. Omer Vs Collector which relates to prohibition under secti....
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....e Department. (iii) Item 22, 27- Panasonic Video Mixer- WJ MX 50 (Rs.2,80,000/-) Appellants procured on hire From M/s.Alamu Video (Further investigation led to) Purchased from M/s.Motherland Pictures, Chennai. (Further investigation by DRI led to) Purchased from M/s.Stream Automations (Invoice No.51/15.3.95) (Investigation led to) Purchased from Broker - (from local Burma Bazaar) No documents produced. From the above sequences of events, it is abundantly clear that the department had pursued the trail from the last person who purchased the goods to the immediate seller. I find that the investigations started at the appellants' premises and it extended to various places in Mumbai, Bangalore, New Delhi, and in fact the department had sufficiently proved their case to the last possible evidence. Only when the ultimate person who happens to be non-existant or it led to purchase from local Burma Bazaar as evidenced above, the investigation could not proceed any further. This clearly proves that the department had discharged its burden with so much evidence on record to prove that the impugned goods which are in possession of the appellants are illicitly....
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....person to establish that goods have suffered duty it is to be presumed otherwise and the said person or persons are liable to be proceeded with under the provisions of the Customs Act. Hence, the contention of the respondent that the burden of proving that the goods had been smuggled or brought into the territory of India without payment of duty, lies on the authorities would facilitate the mischief since all human affairs require absolute certainty, is a myth and 'all exactness is a fake' and absolute proof being unattainable the law would accept probability as a working substitute in this work-a-day world. 19. Hence, when viewed in this background the contention of the respondents that the burden was on the Department to prove that the goods were smuggled would recede background and has to be rejected." The Hon'ble Apex Court decision and the above Hon'ble High Court's Order squarely applicable to the present case. Once the Revenue has proved the burden of proof, they have discharged the onus. The very fact that appellant being a private limited company operating its own TV channel acquired these impugned items of foreign origin for use in the production programme as we....
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.... and broadcasting service and not for sale, I take a lenient view and the redemption fine imposed by the adjudicating authority M/s. Vijay TV and M/s. Motherland Pictures needs reduction. 23. As regards the imposition of penalty on the appellants under Section 112 of the Act, the lower authority has rightly imposed penalties on all the appellants. The appellants contention is not acceptable for the reason discussed in the preceding paragraphs as once it is held that the appellants contravened the provisions of the Act and the goods are liable for confiscation, the appellants are liable for penalty. The appellants relying on Tribunal decision in the case of M/s. Ameet Industrial Corpn. (supra) for waiver of penalty is of no help to the appellants. As seen from the trail leading to involvement of 3 to 4 persons before the first appellant purchased/acquired on hire of these items, each person is unable to prove the licit nature of imports. There are number of judicial rulings by the Hon'ble High Courts and the Tribunal decisions where the penalty imposed under Section 112 is upheld on identical issues. I rely on the Hon'ble High Court of Delhi order in the case of Ajay Dahyabhai S....