Custom, Excise & Service Tax Tribunal
Sushant Agrawal vs New Delhi(Prev) on 11 November, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH-COURT NO. 4
CUSTOMS APPEAL NO. 251 OF 2012
[Arising out of Order-in-Original No. 04/SU/COMMR/2012 dated
21.03.2012 passed by the Commissioner of Customs (Preventive), New
Delhi]
SUSHANT AGRAWAL .......APPELLANT
R/o E-9, Panchsheel Park,
New Delhi
VERSUS
COMMISSIONER OF CUSTOMS-NEW
.......RESPONDENT
DELHI(PREV) PATPARGANJ ICD Patparganj, East Delhi 110096 Appearance Shri Sharad Chand Srivastava and Ms. Gunjan Tanwar, Advocates for the Appellant Shri Girijesh Kumar, Authorised Representative for the Respondent CORAM:
HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) HON'BLE MR. P.V. SUBBA RAO, MEMBER ( TECHNICAL ) FINAL ORDER NO. 51701 /2025 DATE OF HEARING : 24/09/2025 DATE OF DECISION : 11/11/2025 P. V. SUBBA RAO The Order dated 21.3.20121 passed by the Commissioner of Customs (Preventive), New Delhi in the de novo proceedings is assailed by Shri Sushant Agarwal2 in this appeal. The facts of the case are as follows.
1 Impugned order 2 Appellant 2 C/251/2012
2. Acting on intelligence, the officers of Directorate of Revenue Intelligence3 searched various firms owned and/or controlled by the appellant viz., S.R. Textiles, Om Textiles and Hanuman Trading Co. It was found that the appellant had imported fabrics which were, at the relevant time, covered by section 124 of the Customs Act, 19624 and hence if they were seized under the reasonable belief that they were smuggled goods, the burden of proving that they were not smuggled rested on the person from whom they were seized.
3. In all, the appellant had imported fourteen lots of fabrics and after investigation, DRI issued a Show Cause Notice dated 19.6.20045 proposing confiscation of only Lot Nos. 2,4,7,9,11,12,13 & 14 admeasuring 66,253 metres of fabric with market value of Rs. 44,35,030/-. After the SCN was issued, the appellant submitted in reply, documents in defence to show that the seized goods were not smuggled but had been legitimately imported.
4. The Commissioner, however, refused to consider the evidence submitted by the appellant on the ground that it was not submitted during investigation and, therefore, confiscated the goods and imposed penalties. On appeal, this Tribunal, by Final Order C/315/11 dated 25.5.2011 remanded the matter to the Commissioner with a direction to consider the documents. The relevant portion of the order is as follows:
3. DRI
4. Act
5. SCN 3 C/251/2012 ".... It is a settled principle of judicial prudence that documents speak louder than the oral evidence. As such we are of the view that the adjudicating authority was duty bound to examine the said documents produced by the appellants. Similarly, their contention that the same were subsequently retrieved by them from the resumed documents is required to be looked into....."
5. Accordingly, the impugned order was passed. In paragraph 48 of the impugned order, the Commissioner examined the evidence produced by the appellant with respect to each lot and rejected the evidence mainly on two grounds- the documents submitted were contrary to the statements made under section 108 of the Act during investigation and that the documents had either no marks and numbers or that they did not match with what were recorded in the Panchnama.
6. Learned counsel for the appellant made detailed submissions regarding the marks and numbers and the documents to advance his argument that the documents were, indeed, of the seized goods. These have been summarized in a neat table annexed to the synopsis submitted before us. The table is reproduced below.
As per Panchnama dated 29/30.09.2003 Test Report BE No. & Dt. Importer Remarks Commissioner's Finding
Let Descriptio Qty. Marks Country as per Show
No. n Physic of Origin Cause
ally Notice
found
2 Polyester 12300 RTCOT TAIWAN Knitted 218552 dt. Vaibhav Marks As per the documents submitted by
Knitted Meters superior fabric having 06.12.1999 Textiles mentioned in the party in respect of this lot, the
Fabrics (119 quality soft nappy the said goods were imported through
rolls) finished on Panchnama ICD, whereas, it was claimed by the
one side, are not the party in his statement dated
composed of Shipping 07.10.2003 that the goods were
polyester Marks imported through Kolkata Port. The
multifilament These goods claims are thus contrary and no
yarn were seized credence can be given to the
by the DRI documents submitted by him which
vide is an act of afterthought. Further, no
Panchnama marks were declared in the Bill of
dated Entry submitted by the party,
12.12.2000, whereas as per the Panchnama
however, dated 30.09.2003, marks such as
release after "RTCOT Superior Quality" was
investigation. visible on the fabrics.
4 Flock 12080 Kabool Flock fabric 12373 dt. Hanuman The B/E No. The party at the time of drawing of
Fabric Meters Ltd. Red base: 28.09.2002 Trading 12373 dt. Panchnama dated 30.09.2003
(49 Patta composed of 673 dt. Company 28.09.2002 stated that 12080 meters of goods
Bales) with Sun Polyester 18.09.2002 was submitted were imported vide Bill of Entry No.
22060 multifilament to DRI at the 12373 dt. 28.09.2002 and the Bill of
Meters yarn, flock: time of seizure Entry in respect of 22060 meters has
4
C/251/2012
(118 made of Marks not been received from Mumbai. He
bales) viscose/com mentioned in later claimed that the relevant
p: base the document (Bill of Entry No. 673 dt.
knitted Panchnama 18.09.2002) has not been culled out
fabric- are not the of resumed documents. No
63.3%, Shipping documents pertaining to 12080
balance- Marks. meters were furnished by the party
flocks & and is claimed by him. Further, on
adhesive. examination of the document i.e. B/E
No. 673 dated 18.09.2002, it is seen that no marks such as 'Kabool Ltd., Red patta with sun' were declared under Marks and numbers column.
7 Coated 10332 20008/ TAIWAN Woven 113356 dt. Vaibhav This B/E was
Fabric Meters 34 fabric of 30.10.2000 Textiles a subject
(57 spun yarn matter of
rolls) along one investigation
side & nylon under Show
multifilament Cause Notice
yarn along DRI F. No.
other side, 23/107/2000/
coated on DZ(Pt.VI.).
one side The Show
with Cause Notice
polymeric was dropped
material/ vide Order-in-
composition- Original No.
polyester AKR/CC/ICD/
58.6%, TKD/28/2002
Nylon-35% and the goods
bal- were released
polymeric unconditionally
material. .
9 Net Fabric 3000 No Netled fabric 900604 dt. Vaibhav It was reported by the party on
Meters marks composed 10.05.2000 Textiles 30.09.2003 that the goods belonged
(30 wholly of to other party. Whereas Bill of Entry
rolls) multifilament No. 900604 dated 10.05.2000 is of
yarn of M/s Vaibhav Textiles, Gurgaon,
polyester. belonging to the party. The said Bill
of Entry is in respect of 'Synthetic Mosquito Net Stock Ltd.', whereas it was described as 'Net Fabric's in the Panchnama dated 30.09.2003. The party has not submitted any records to show transfer of goods from Gurgaon to Okhla.
11 PVC 6150 No Woven I-719 dt. Hanuman It was claimed by the party on Fabric Meters marks fabric 09.08.2002 Trading 30.09.2003, at the time of drawing of (Leather 123 composed of Company Panchnama, that the goods were 4- Cloth) rolls blended 5 years old, whereas as per the spun yarn of documents submitted by him, the polyester & goods were just a year old. No viscose evidence showing transfer of goods laminated on to Okhla, has been produced by the one side, party.
polymeric
material
other than
PVC.
Composition
- polymeric
material-
41.9%, bal-
woven fabric
(polyester-
79.3%, bal-
viscose)
12 Polyester 8228 White KOREA Knitted 10620 dt. Vaibhav These Goods As per the Panchnama dated
Knitted Meters strip fabric 02.06.2000 Textiles were imported 30.09.2003, the description of goods
Fabric (185 composed of in carton is 'Polyester Knitted Fabrics',
rolls) single ply packing. The whereas documents submitted (Bill
spun yarn of cartons were of Entry No. 10620 dt. 02.06.2000
artificial later removed and invoice no. JD04 dated
staple fibres and the fabric 14.04.2000) are in respect of 'Wrap
of celluloric was stored in Knit Fabrics-Stock Lot". Further,
origin plythene white strip was found on the goods
together with covers tied of this lot at the time of drawing of
polyester with white the Panchnama dated 30.09.2003.
multifilament strip. The party at that time did not inform
yarns. the officers that the said goods were
Composition imported in carton packing and later
- single sply removed and was stored in
spun yarn of polythene covers tied with white
artificial strip. His claim is an afterthought
5
C/251/2012
staple fibres and bears no authenticity.
of cellulosic
origin-
89.2%, bal-
polyester
multifilament
yarn.
13 Processed 8452 SH-794 Cutpile I-572 dt. Vaibhav There is mis- It was claimed by the party on
Cotton Meters SC- woven fabric 22.08.2003 Textiles recording of 30.09.2003 that the goods of this lot
Fabric (176 264/415 having ribed marks in the were received only 2-3 days back.
rolls) surface on Panchnama. The documents submitted by the
one side, The actual party show that the goods were
composed of marks are imported well over three months ago
single ply 236/415 which from the date. Further, Marks on the
cotton yarn may be goods (SC 264/415) do not tally fully
on one side verified. with marks (236/415) declared in the
& elastic Bill of Entry dated 22.08.2003.
yarn
covered with
single ply
cotton yarn
on other
side. Piles-
cotton,
cotton-
95.3%, bal-
elastic yarn.
14 Nylon 3650 No Printed still 1-456 dt. S. R. Textiles As per Panchnama dated
Mesh Meters marks woven fabric 08.12.1998 30.09.2003, the goods were 'Nylon
(73 (mesh type) Mesh', whereas documents
rolls) having pertaining to 'Printed Nylon Mesh for
uniform footwear' has been submitted by the
square party.
meshes,
wholly
composed of
monofilamen
ts of
polyester.
7. The question which arises is whether or not the appellant has discharged his burden of proving that the seized goods were not smuggled by producing the above documents. The Commissioner rejected the documents pointing out the discrepancies with respect to each of the lots. The discrepancies were mainly on two grounds. The documents now submitted were contrary to the statements made under section 108 of the Act at the time of seizure and the marks and numbers of the goods recorded in the Panchnama at the time of seizure and the marks and numbers in the Bills of Entry do not match. In most cases, no marks and numbers were indicated in the Bills of Entry at all.
6
C/251/2012
8. As far as the statements made during seizure under section 108 of the Act are concerned, as per section 138B of the Act, they are relevant to prove the truth of their contents if the adjudicating authority, after examining the person who made the statement as a witness, admits the statements as evidence. This section reads as follows:
"
138B. Relevancy of statements under certain circumstances.--
(1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,--
(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or
(b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court."
9. Since the Commissioner did not examine the persons as witnesses and admit their statements as evidence, they are not relevant to this case. Any discrepancy between the statements made and the Bills of Entry produced cannot be a ground to reject the Bills of Entry.
10. As far as the marks and numbers are concerned, it is possible that while filing Bills of Entry one was not careful enough 7 C/251/2012 to fill all necessary columns correctly and marks and numbers may not have been mentioned. That, in itself, cannot be a ground to reject the Bills of Entry.
11. In view of the above, the Commissioner erred in rejecting the Bills of Entry produced by the appellant in defence to show that the seized goods were legally imported. Consequently, the impugned order confiscating the seized goods and imposing penalties cannot be sustained.
12. The impugned order is set aside and the appeal is allowed with consequential relief to the appellant, if any.
[Order pronounced on 11/11/2025] (DR. RACHNA GUPTA) MEMBER (JUDICIAL) (P.V. SUBBA RAO) MEMBER (TECHNICAL) Tejo