TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 432
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....d were stored in the aforesaid godown. On intercepting the truck, three persons were found supervising the unloading . On being questioned about the contents of the carton loaded on the impugned truck, the driver and helper produced one e- way bill bearing date 20.12.2018 with description of goods as metal planter. However, on randomly checking of the few cartons, cigarettes of „GUDANG GARAM‟ brand were found. During the examination of the impugned goods, the Appellant arrived and introduced himself as owner of transport company i.e M/s Star Express Enterprises. In the premises, few more cartons containing miscellaneous goods such as electronic goods and iron dustbins/ planters and 33 cartons containing different brands origin cigarettes were found. The truck and cartons were taken to DRI Delhi Zone Office as godown premise did not have enough light. After detailed examination of the impugned goods, 21,60,000 foreign origin cigarettes sticks of different brands were found from 150 cartons loaded in truck. Further 3,41,000 foreign origin cigarettes sticks of different brands were found from 33 cartons found in transport company premises. Besides this, 134 numbers of meta....
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....her three persons was arrested on 21.12.2018 under Section 135 of the Act. 7. Show cause notice was issued, inter alia, proposing confiscation of seized cigarettes and penal actions on several persons including the Appellant. The issue was adjudicated whereby, seized smuggled cigarette were confiscated under Section 111(d) of the Act and penalty of Rs. 25,00,000/- was imposed upon the Appellant under Section 112(b) (i) of the Act and penalty of Rs.10,000/- on Nazakat, Suman Patel & Salman. Being aggrieved the appellant preferred an appeal which has been rejected by the impugned order. Hence the present appeal. 8. Heard Shri Gaurav Prakash, learned counsel for the appellant and Shri Vishwa Jeet Saharan, Authorised Representative for the respondent. 9. Shri Gaurav Prakash, the learned Counsel for the appellant has seriously challenged the Panchama and pointed-out glaring deficiencies such as: (i) The Panchnama does not specify how the premises of M/s Star Express Enterprises was identified. (ii) The godown premises was not identified or authenticated by panch witnesses. (iii) As per the Panchama, surveillance was kept at the godown premises from 11 PM, however, the arrival o....
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....d Hawaldar, DRI,DZU. The DRI officer informed us that they had received a specific intelligence thjat one Mini truck(Swaraj Mazda) having registration Number UP21 BN 5207 carrying illegally smuggled foreign cigarettes would be offloaded at godown of M/s Star Express Services having address 14, Bageechi Madhodas, near Red Fort, Delhi-06, and that they require to intercept the said truck. The DRI officer requested us to remain present as independent witnesses to witness the whole proceedings, to which we the panchas readily agreed. Then, we the above named panchas accompanied the DRI officers in their named vehicle from CGO Complex at about 11.00 PM on 20.12.2018. On the basis of specific information kept surveillance of the area near the godown having address 14, Bageech, Mathodas, near Lalquila, Delhi for around 1 and half hours. Around 01.00 AM(21.12.2018), A Mini truck (Swaraj Mazda) having registration No. UP21BN5207 was located outside the aforesaid godown and upon reaching the sopt it was found that the some cartons loaded on the said mini truck of Swaraj Mazda make were unloaded and were stored in the aforesaid godown. Thereafter the DRI Officers, in the presence of we pa....
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....truck having registration No. UP21BN5207 of foreign origin Cigarettes were taken to the DRI office, located at CGO Complex in Lodhi Road, New Delhi. All the four persons namely Sh. Hira Singh, Sh. Nazakat, the Driver, Suman pal, the helper of truck driver and Sh. Mohd. Salman, the agent of supplier were served summons under Section 108 of the Customs Act, 1962 by the SIO, DRI, DZU who was part of the team of DRI Officers, to present themselves at DRI,DZU office located at 6th Floor, Pt. Deendayal Antyodaya Bhawan, CGO Complex, Lodhi Road, New Delhi, 110003 to give evidence. The truck, the tempo and the government vehicle along with Nazakat, Suman Pal, Mohd salman, Hira Singh and we panchas reached the CGO Complex at about 03.30 AM of 21.12.2018. All the cartons in the mini truck an hired tempo were shifted to a room on the 9th Floor of Pt. Deendayal Antyodaya Bhavan, CGO, Complex, New Delhi and a detailed examination of the said cartons was conducted by the officers of DRI in the presence of us the panchas and the said four persons. Upon examination, each of the cartons was found to contain Cigarettes of foreign origin, of various brands, neatly packed in cardboard boxes. A few....
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....oken of having perused and it was as per our say. The proceedings were concluded on 12.20 pm on 21.12.2018 and we remained present throughout the proceedings." 11. From the perusal of the Panchama, I find that all the basic and relevant information required at that stage were duly incorporated. The time and place of calling the panch witnesses, the identity of the officer has been clearly mentioned, the purpose of the whole proceedings was duly intimated. The further details of accompanying the officers at the site in question at the time and place and specific details of the nature of the truck and its registration number which was intercepted have been mentioned in the Panchama. The next important step was the identification of the three persons, who were found supervising the unloading of the main truck, the driver, the helper and agent of the supplier. Further, the production of the E- way bill with serial number 491041939631 dated 20.12 .2018 describing the goods as metal planter and on being checked randomly, cartons of cigarettes of foreign origin with brand name of Indonesia was found. Similarly the search of the godown resulted in the recovery of foreign origin cigarettes....
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....s itself doubtful, the entire case booked by the Preventive Branch cannot be allowed to stand on its own legs. Such is not the case here and moreover, it is not apparent from the order as to the nature of defects or deficiencies found in the Panchnama. In the case of Anand Kumar, it is the Department who filed the appeal against the order of the Commissioner (Appeals) who had found the panchnama to be doubtful. The present case is entirely different, and hence no reliance can be placed on the said decision. Similarly, in the case of Mahalaxmi Dyeing Mills, the High Court of Gujarat was considering the appeal filed by the Revenue and in that context had observed that the Tribunal found discrepancies in the entries of the diary as well as in the Panchama drawn by the Department, which the Department could not reconcile. As observed, the nature of discrepancy in a Panchnama is a factual matter and has to be based on the facts of that particular case, which I find is not clear from the order of the High Court and hence no reliance can be placed on it. In the case of Kuber Tobacco Products Ltd., the Panchama along with the annexure has been quoted in the order, and various discrepancies....
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....uld not be rejected but requires to be examined carefully, I am of the firm opinion that the so-called deficiencies made out by the appellant are not required to be part of the Panchnama and, therefore, does not affect the reliability of the Panchama. 14. Before parting with the challenge to the Panchama, I may consider the last submission made in this regard, the seizure memo at S No.5, while giving the details of goods seized, stated as per enclosure Annexure A, B, C & D, however, no such annexure D has been found to be annexed nor copy thereof has been supplied to the appellant. The plausible explanation given by the learned Authorised Representative that it appears to be a typographical error, seems to be acceptable, more so as it is neither apparent from the records nor has it been pointed out by the appellant that Annexure D has anywhere been relied upon by the Department and consequently, no prejudice seems to have been caused to the appellant. Hence the objection raised by the appellant has no merits. 15. The next submission of the learned counsel is based on the statements recorded under section 108 of the Act being without any corroboration and having been recorded unde....
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.... clearly establishes his involvement in smuggling of the seized cigarettes of foreign origin in the absence of any valid documents. The statement has not been retracted by the appellant at any point of time. The observations of the Supreme Court in Commissioner of C.EX., Madras versus Systems and Components Pvt. Ltd 2004 (165) ELT 136 (SC) what is admitted need not be proved, suffices the burden of the prosecution and in the circumstances nothing further needs to be established. 16. The appellant has also raised the plea that though he specifically requested for an opportunity to cross examine the Panch witnesses, Shri Nazakat, Shri Suman Pal Shri Mohammad Salman, Mubarak Khan, Zakir Ali and Sunil Kumar Jha however, the Adjudicating Authority failed to allow the same. As discussed above, the appellant had admitted the smuggling of the cigarettes of foreign origin in his statement recorded under section 108, it cannot be said that denying the cross examination of the witnesses has led to any prejudice to the appellant. The Supreme Court in Kanungo & Company 1973 (2) SCC 438. considered the complaint made by the appellant that all those persons from whom enquiries were made by the a....
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....ve evasion of tax laws or evasion of customs duty, lower threshold of proof, i.e., preponderance of probability is to be followed and it is not required to insist upon proving the case beyond reasonable doubt. Reliance is placed on the decision in Naresh J. Sukhwani versus Union of India 1996 (83) ELT 258 (SC) and K.I. Pavunny versus Assistant Collector 1997(90) ELT 241(SC). In Collector of Customs, Madras & Ors. versus D Bhoormull 1983,(13) ELT 1546 (SC) , the Supreme Court in the context of the burden on the Department to prove the factum of smuggled goods, held that, "the law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that prudent man may, on its basis, believe in the existence of the fact in issue". 20. The goods seized in the present case are cigarettes of foreign origin. From the legal provisions cigarettes can be freely imported subject to the provisions of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and the Rules framed thereunder which envisages that on the box, carton, and pou....