Customs, Excise and Gold Tribunal - Mumbai
A.T. Patel And Swiss Gallery vs Commissioner Of Customs on 11 November, 2003
Equivalent citations: 2004(178)ELT336(TRI-MUMBAI)
ORDER Moheb Ali M., Member (T)
1. These appeals arose out of the order of Commissioner of Customs (Pres), Mumbai. In the impugned order the Commissioner ordered confiscation of 121 wrist watches valued at Rs. 15,18,205/- and 203 pens valued at Rs. 56,250/- under Section 125(1) and allowed them to be redeemed on payment of fine of Rs. 5 lakhs in respect of watches and Rs. 1 5,000/- in respect of pens provisionally. He also imposed a penalty of Rs. 1 lakh on M/s Swiss Gallery under Section 112(b) and Rs. 50,000/- on Shri Asaraf Patel, the partner of the firm, under the same Section. Shri Ashraf Patel died during the pendency of the appeal. His brother Shri Aftab Patel, the legal heir was allowed to pursue the appeal. At the out set we observe that wrist watches were notified under Section 123 of the Customs Act, the pens were not.
2. The impugned goods were seized from the premises of the appellants. The Commissioner in the impugned order examined the various contentions raised by the respondent before him in regard to the origin of the goods, and finally concluded that the goods are smuggled into the country. The Commissioner examined the claims that some of the watches were locally procured and some others were procured from passengers who brought them as a part of their baggage and ruled that the watches were of foreign origin and the respondents did not discharge the burden cast on them under Section 123 to prove that they are not smuggled. In regard to the pens under seizure be held that pens were not allowed to be imported into the country since 1947 and so could not have been legally imported he rejected the claim of the respondents that they were purchased from various passengers as the baggage receipts produced in support were more than three year old but the pens under scizure were new. The Commissioner dealt with each and every contention put before him during the adjudication proceedings and held the seized goods are liable to confiscate under Section 111(d) of the Customs Act.
3. Heard both sides. The ld. Advocate argued that the Commissioner failed to appreciate the evidence put forth by the appellants before him while ordering confiscation of the goods and imposing penalties. Ld. DR supported the Commissioner's order.
4. Basically the question boils down to whether or not the appellants discharged the burden cast on them to prove that the watches seized and latter confiscated were not smuggled. It is their contention that 48 out of 121 watches were locally assembled by M/s Goyal Pvt. Ltd. and sold to them. According to them the components contained in these watches were legally imported. This assertion was not supported by any bills of entry under which such components were cleared. A bland assertion of this kind does not constitute evidence. The argument that the watches were locally assembled was rightly rejected by the Commissioner. In respect of 12 watches the appellants claimed before the Commissioner that they were duplicate watches and were not a part of 39 watches procured from M/s Dream Time Watch Co. Bangalore as originally claimed while replying to the show cause notice. Granting that they were so, we observe that even duplicate watches can be smuggled. The burden cast on the person from whose possession notified goods are seized is not discharged if he/she merely claims that the goods under seizure are duplicate. In regard to the claim that the rest of the watches were procured from various passengers who brought them as part of their baggage remained unsubstantiated in as much as the appellants failed to establish the nexus between the three year old baggage receipts and the watches under seizure. The Commissioner rightly relied on the decision of the Apex Court Union of India v. Shamsunder and Ors. AIR 1994 Supreme Court 485. We do not find any infirmity in the Commissioner's order in so far as he held that the appellants failed to discharge the burden cast on them under Section 123. The watches in question were rightly confiscated under Section 111(d) of the Customs Act.
5. In so far as 203 pens of foreign origin are concerned the Commissioner held that the appellants could not establish the nexus between the baggage receipts under which they were claimed to have been cleared by various passengers and the seized pens. The baggage receipts were old and the pens were new, the brand names of the pens were not indicated on the baggage receipts we find no infirmity in the order of the Commissioner when he held that the pens in question were smuggled into the country. It is now well settled that even in the case of goods not notified under Section 123 of the Customs Act the burden of proof shifts from one to another. The pens were not confiscated merely on the ground that they have foreign markings. The Department gave every possible opportunity to the appellants to explain as to how they came to possess them. The appellants could not come out with any plausible explanation. The pens in questions were rightly confiscated under Section 111(d) of the Customs Act.
6. The Commissioner imposed a redemption fine of Rs. 5 lakhs. He seemed to have determined the value as Rs. 7,50,000/- provisionally. The reasons for doing so are not known. We observe that a fine of Rs. 5 lakhs is excessive. Since no allegation is made that either the firm or its partner have smuggled the goods in question, we find that a reduction in the penalty imposed on the firm is called for. Penalty on Ashraf Patel abates.
The order of the Commissioner is modified the appeals are partly allowed in the following terms :-
Confiscation of watches and pens is upheld, redemption fine is reduced to Rs. 1 lakhs on watches and Rs. 5,000/- on pens. Penally on M/s Swiss Gallery is reduced to Rs. 10,000/-. Penalty on Shri Ashraf Patel set aside.