TaxTMI 
TaxTMI 
2019 (3) TMI 523
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....g open four seals (intact) 640 cartons were recovered. 60 were randomly selected and examined. Each of those sample was found to contain 200 spools of video magnetic tapes packed in 46 (each set of 5 spools) and to have 850 feet tape. The Customs Officers drew samples from 12 cartons (five spools from each carton) and took the shipping bill No.1032006 dated 07.09.1998 covering the above consignment into their possession vide Panchnama dated 30.09.1998 drawn on the spot. It is after subsequent investigation in the form of searches and recording the statement of all concerned that the impugned goods were seized on 19th November, 1998 and a show cause notice under Section 124 of Customs Act, bearing No.5606 dated 19.03.1999 was served upon the appellant calling him to explain as to why the seized goods i.e. 630 cartons containing Rs. 1,26,000/- pieces of video magnetic tapes shall not be confiscated and that the duty amounting to Rs. 19,83,883/- as deposited by the proprietor of the appellant on 16.10.1998 (Rs.18,00,000/-) and on 08.10.1998 (Rs.1,83,883/-) may not be adjusted against the duty of customs foregone by the appellant on the import of the goods alongwith the imposition of p....
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.... the notice specially when "let-export" order was issued by Central Excise Officer. It is further submitted that the goods were detained on 19.09.1998 at Mumbai. The show cause notice issued on 19.03.1999 and served on 28.03.1999 was beyond the limitation as the period had to reckon from the date of detention itself but the adjudicating authority has committed an error while distinguishing detention from seizure. The ld. Counsel has relied upon Ferro Alloys Corporation Ltd. Vs. Collector of Appeals, Bhubaneswar - 1995 (77) ELT 310 (L.B.) and on Pharma Chemicals reported in 2005 (181) ELT 339 (S.C.). It is also submitted that no demand of duty can be ordered without issuance of SCN. Reliance is placed upon: • CC Calcutta Vs. Tin Plate Co. Of India Ltd. 1996 (87) E.L.T. 589 (S.C.). • Raju Fabrics Vs. CC, Ahmedabad 2004 (166) E.L.T. 468 (T) • Nath International Corp Vs. CC, Mumbai 2003 (152) E.L.T. 430 (T) It is also submitted that reliance is placed upon: • Uma Rajeshwarrao Patra Vs. UOI 1999 (109) E.L.T. 123 (Cal.) • UOI Vs. Kanti Tarafdar 1997 (91) E.L.T. 51 (Cal.) • Kantilal Somehand Shah and Anr. Vs.....
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....y the order under challenge. 4.2 With respect to the merits of the case, it is submitted that the proprietor of appellant Mr. Rakesh Kumar Bhagat himself vide his voluntary statement dated 05.10.1998 admitting entire incrimination against him confessing that the video tapes which were imported by him vide bill of entry No.111376 dated 09.10.1997 were sold by him in the local market in India. He also admitted for purchasing old and used video cassettes from the local market and export the same packed in 630 cartons vide shipping bill No.1032006 dated 07.09.1998. There is no retraction of this admission which otherwise is the best evidence against the appellant, except Mr. Bhagat's Counsel letter dated 23.11.1998. It is impressed upon that said letter has rightly been ignored by the adjudicating authority while confirming the confiscation, appropriation of duty and imposing the penalty. It is further submitted that at the first round of litigation, the appellant was allowed to cross-examine the Engineer from Doordarshan Kendra. Nothing cogent in favour of the appellant could come on record out of the said cross-examination as may support the appellant. 5. Thus, the order under ....
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....cer to carry out Customs Procedure. Thus, the moment the manufactured goods enter the precincts of Customs Commissionerate they have to be dealt with by them and Notification No. 27 has to come into play. This stands clarified from Section 69 of the Customs Act, which speaks about clearance of warehoused goods for export, Section 2 (34) of the Customs Act define proper officer in relation to any functions to be performed under this Act to mean the officer of Customs. Stage clearance of warehoused goods onwards is a function under Customs Act, the proper Officer is definitely the Officer of Customs. The situation stands clarified vide Circular No.126 dated 12.12.1995 stands modified vide Circular No.27 of 10.05.1996. It has been clarified that there is no overlapping of jurisdiction but a clear cut demarcation of function to be performed by Central Excise Commissionerate and Customs formation. Since in the present case, the goods were intercepted at Mumbai Customs area. They had already reached into the jurisdiction of Customs Commissionerate. To my opinion, the Commissioner, Customs was the competent/ "proper Officer" to issue the impugned show cause notice. The issue of jurisdicti....
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.... goods and the technical order of the competent authority about something called as seizure is announced. 6.2.3 This distinction is sufficient for us to hold that the detention is a case prior of acquiring convection that seizure is required and hence is different from seizure. As per Section 124 of Customs Act, period of 6 months has to reckon from the date of seizure. Resultantly, I am of the opinion that the show cause notice is well within the limitation period. In view of above discussion and the quoted law, the case law as relied upon by the appellant is not applicable. 7. Now coming to the merits of the case, it is impressed upon by the appellant that the statement of Mr. Rakesh Kumar Bhagat dated 05.10.1998 as is relied upon by the adjudicating authority to confirm the demand and impose the penalty was retracted vide letter dated 23.11.1998, since it amounts to withdrawal of admission, if any, the same cannot be read against the appellant. The order confirming the penalties is therefore, liable to be set aside. 7.1 The submission is rebutted on the ground that retraction has come beyond 45 days and that the appellant had already deposited the duty and the value of ....