AI Drafter 
TaxTMI 
TaxTMI 
2020 (2) TMI 438
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....viso to Section 28(1) of the Customs Act, 1962 as under:- (a) M/s. Noble Marine Works : Rs. 2,89,596/- (Rupees Two lakhs Eighty Nine Thousand Five Hundred and Ninety Six Only) (b) M/s. M.A. Traders : Rs. 2,89,542/- (Rupees Two lakhs Eighty Nine Thousand Five Hundred and Forty Two Only). (c) M/s. Shree Durga Traders : Rs. 1,69,865/- (Rupees One lakh Sixty Nine Thousand Eight Hundred and Sixty Five only). (d) M/s. Jubilee Traders : Rs. 4,18,228/- (Rupees Four lakhs Eighteen Thousand Two Hundred and Twenty Eight only) Total : Rs. 11,67,231/- (Rupees Eleven lakhs Sixty Seven Thousand Two Hundred Thirty One Only). (ii) The goods valued at Rs. 3,22,374/-, Rs. 3,22,314/-, Rs. 1,89,091/- and Rs. 4,65,564/- seized from M/s. Noble Marine Works, M/s. M.A. Traders, M/s. Shree Durga Traders and M/s. Jubilee Traders, respectively, are confiscated under Section 111(h), 111(j) and 111(m) of the Customs Act, 1962. However, since seized respective goods have been provisionally released to the noticees, viz., M/s. Noble Marine Works, M/s. M.A. Traders, M/s. Shree Durga Traders and M/s. Jubilee Traders, respectively, against Bonds backed by Bank gu....
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....bilee Traders, in his statement, stated that he was engaged in the purchase and sale of scrap from ships, such as PP Ropes. Statements were also recorded from the proprietors of M/s Noble Marine Works and M/s M.A. Traders as well as from two functionaries of SCI, namely, Shri D.K. Mukhopadhyay, Assistant General Manager (Purchase Department) and Shri Y.B. Sawant, Dy. Manager, Freight Customs. Shri Mukhopadhyay and Shri Sawant narrated the manner in which scrap from the vessels of the corporation was delivered to M/s Noble Marine Works and M/s M.A. Traders. Both of them referred to delivery orders, wherein the scrap was indicated as of Indian Origin. Shri Sawant went to the extent of admitting that the mention of 'Indian Origin' in the delivery orders had been made by mistake. From the results of investigation, it appeared to the department that the scrap which was found in the premises of M/s Shree Durga Traders had been imported by M/s Noble Marine Works and M/s M.A. Traders from foreign-going vessels without following the customs procedure and without payment of duty. Accordingly, a show-cause notice was issued to them as well as to M/s Sri Durga Traders and M/s Jubilee Traders f....
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....d that they had described the goods as of 'Indian Origin' in the relevant Bills of Entry on the basis of the description given in the respective delivery orders issued by SCI and that nothing was deliberately suppressed with intent to evade the payment of duty and, therefore, the extended period of limitation was not invocable against them. We have found these contentions having been clearly raised in the reply made by these parties vis-à-vis the allegation in the show-cause notice. However, the Commissioner appears to have overlooked this case of the main parties. Learned Commissioner merely looked into the question whether on merits duty was leviable from the appellants. It, therefore, appears that this is a case fit for remand to the lower authority for the purpose of fresh adjudication. The delivery orders are crucial documents in this case but none is forthcoming. Examination of these documents can be better done at the lower level. We have not been able to discern all aspects of these delivery orders from the impugned order. We also note that it is the consistent case of M/s Noble Marine Works and M/s M.A. Traders that they had cleared the goods at customs in accordanc....
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....and were smuggled. Since the seized goods were not notified goods, by submitting the source of procurement with the relevant documents they have discharged the burden cast on them and in such a situation the goods could not have been held to be illegally procured as has been held in the following decisions: • Mahendra Singh Purohit [2008 (225) ELT 426 (Bom)] • Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom)] & [2007 (208) ELT A195 (SC)}] • By confiscating the goods and allowing them to be cleared against redemption fine, Commissioner has gone beyond the remand order. Since the goods were not subjected to redemption fine in the first order in original, and the order was not challenged by the revenue on that account, it had become final. Thus Commissioner has in remand proceedings gone beyond the scope of remand order which is contrary to the decision in case of Kalyani Sharp India Limited [2008 (226) ELT 197 (T)] upheld at [2010 (255) ELT A 18 (SC)] • Section 114A was brought in the statue w.e.f 28.09.1996 and they had cleared the goods by filing the Bill of Entries during the period 1994-95, the penalty imposed under the said se....
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.... of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity or the relative triviality of the issues at stake, in some special type of case, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was travelling without a ticket; a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within his special knowledge. Similarly, if a person is proved to be in recent possession of stolen goods, the prosecution will be deemed to have established the charge that he was either the thief or had received those stolen goods knowing them to be stolen. If his possession was innocent and lacked the requisite incriminating knowledge, then it will be for him to explain or establish those facts within his p....
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....letters No. Nil dated 12.7.95 to claim that these goods were procured by them locally but the goods under seizure could not be correlated to these documents. 3.6 It has been pointed out by the Noticees during their defence that as the goods are not notified under Section 123 of the Customs Act, 1962, burden is on the department to prove the non-duty paid nature of the goods. The case laws cited by them are:- (i) CC v. Sudhir Saha (Cal HC) reported in 172 ELT 26 C/143,144,145,146/13 2011 (ii) AC v. Umed Jain (Gauhati HC) reported in 23 ELT 307 (iii) Pradip Agarwal v. CC (Tribunal) reported in 153 ELT 307. (iv) CC v. National Radio Product (Tribunal) reported in 156 ELT 908. (v) CC v. Mahendra Purohit (Bombay HC) reported in 225 ELT 426 (vi) MD Isha v. CC (Tribunal) reported in 251 ELT 588. M/s. Noble Marine Works, M/s. M.A. Traders, M/s. Shree Durga Traders and M/s. Jubilee Traders were given enough opportunities to submit the evidence regarding their claim, which they could not submit. M/s. Noble Marine Works and M/s. M.A. Traders have claimed that said 18 MT of seized P.P. Robes was cleared vide Bills of Entry....
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.... submitted by the Noticees. Whereas the impugned goods are 'Poly Propylene Ropes', the description of the goods as per Bills of Entry are Wire- Ropes, scrap material, Moorings, Anchor Chains etc. On perusal of the three bills of entry (as in Para 1.24 above), it is observed that these are for value Rs. 15,000/-, Rs. 35,000/- and Rs. 50,000/- respectively. As per contract between M/s. Noble Marine and M/s. Shipping Corporation of India, the value at which PP Ropes were to be cleared was Rs. 41,825.55 per MT for coastal vessel and Rs. 35,812.60 for foreign going vessels. Obviously these bills of entry can not be for the goods under reference, as the value of goods cleared through these bills of entry is not adequate to cover these goods. Thus the claim of M/s. Noble Marine Works remains unsubstantiated and hence not tenable. It is, therefore clear that the seized goods are entirely different and can not be co-related to the Bills of Entry submitted by the Noticees. Moreover, even the goods of Indian origin, when re-imported into India are liable to be assessed to Customs duty in terms of the provisions of Section 20 of the Customs Act, 1962. Even the procedure for clearance of 'Coast....
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....ich very slight evidence may suffice." 4. It would be, thus, seen that the Supreme Court held that even if a person who is to be proceeded against has a special or peculiar knowledge facts, the Department is not relieved of its burden to establish that the goods have entered into the country illegally and that the said goods were smuggled. 5. In the light of the legal position highlighted by the Supreme Court in D. Bhoormull, it cannot be said that any wrong principle of law was applied by the Tribunal. 6. It is pertinent to note that initially the case of the Revenue was that the seized goods were not the goods imported vide Bills of entry submitted by the respondent. However, on re-verification, the only discrepancies that were found were regarding the wrong description or incorrect country of origin. In the facts and circumstances of the case, therefore, the burden lay on the Department to produce some material/evidence to establish that the seized goods were smuggled goods which they miserably failed to do. As to whether the party upon whom the burden lies to prove a fact, has discharged the burden or not is always a question of fact." 4.5 In case ....