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Manjit Singh Chandoke Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1986)(8)LC275Tri(Mum.)bai
AppellantManjit Singh Chandoke
RespondentCollector of Customs
Excerpt:
.....contended inter-alia: (1) the seizure has been effected by the authorities on the ground that the goods under seizure would be useful to them and help them to carry out investigation. it was therefore urged that unless the seizure is under section 110 clause (1) of the act in addition to the same being consequent on a reasonable belief, they cannot be confiscated. (2) the board having felt that the goods under seizure could not have been cleared as baggage, should have allowed the appeal as original orders proceeds on the basis that they could not have been declared as baggage but the goods under seizure were cleared as baggage without any declaration. it was further urged that the appellant has merely stated before the authorities that he purchased the goods under seizure from various.....
Judgment:
1. The Revision preferred before the Government of India by the appellant against the order of Central Board of Excise and Customs, New Delhi dated 25th Jan., 1980 confirming the order of the Additional Collector of Customs, Bombay dated 6.3.1976 imposing a redemption fine of Rs. 16,000/- on the appellant under Section 125 of the Customs Act, 1962 besides a personal penalty of Rs. 8,000/- under Section 112 of the Customs Act, 1962 stands transferred to the Tribunal for being disposed of as if it were an appeal.

2. Shri Sujan Singh Chandhok is a Proprietor of M/s. Eastern Trading Agency and he returned from U.K. on 16.10.1973. His business premises were searched by the authorities on 22.11.1973 and carburator parts such as needle pins, jet, float needles etc. as detailed in the Mahazar were seized on the reasonable relief that they were of foreign goods and were imported contrary to the provisions of the law. Proceedings were instituted against the appellants by issue of show cause notice which resulted in the impugned order. During the pendency of the proceedings Shri Sujan Singh Chandhok passed away with the result his son Shri Manjit Singh Chandhok has been brought on record as legal representative. Shri Nankani the learned Counsel for the appellant aggrieved by the impugned order contended inter-alia: (1) The seizure has been effected by the authorities on the ground that the goods under seizure would be useful to them and help them to carry out investigation. It was therefore urged that unless the seizure is under Section 110 Clause (1) of the Act in addition to the same being consequent on a reasonable belief, they cannot be confiscated.

(2) The Board having felt that the goods under seizure could not have been cleared as baggage, should have allowed the appeal as original orders proceeds on the basis that they could not have been declared as baggage but the goods under seizure were cleared as baggage without any declaration. It was further urged that the appellant has merely stated before the authorities that he purchased the goods under seizure from various persons and so non-examination of those persons by the department would be invalidated the order.

(3) It was urged that the show cause notice in this case is dated 17.5.1975 and the same was issued beyond the statutory period of six months after seizure, contrary to the provision of Section 110 Clause (2) and so the order is vitiated.

(4) It was also argued that the show cause notice has been served on the appellant beyond the period of six months from the date of seizure. So it cannot be deemed to be proper service within the statutory time limit. The learned Counsel relied on the ruling of the Supreme Court reported in AIR 1966 S.C. 330 in the case of Narasimhan v. H.C. Singri Gowda and Ors., and also the ruling in AIR 1972 Gujarat 126 in the case of Ambalal Morarji Soni v. Union of India and Ors....

3. The learned Departmental Representative contended that a reference is made in the order of adjudication to the postman's endorsement on the show cause notice on 20.5.1974 and 22.5.1974 that "the addressee was not found". This confirms that the show cause notice was issued within six months' time. It was further urged that the defect or infirmity in the show cause notice will not invalidate or nullify the authority's order for confiscation passed by the adjudicating authority. The Senior Departmental Representative also urged that the search itself was on the basis of information and therefore it cannot be contended that the same was without reasonable belief. It was further urged by the Senior Departmental Representatives that there is discrepancy in the evidence of the appellant and his son with reference to the foreign nature of the goods under seizure. The S.D.R. also contended that the appellant did not produce the bills for the purchase of goods under seizure within a reasonable time and has not satisfactorily explained the delay.

4. I have carefully considered the submissions of the parties. It is settled law that a Mahazar is a contemporaneous document evidencing seizure. The mere fact that the averment in the Mahazar that the seizure was on the reasonable belief that they would be useful to them for proceedings under Customs Act, 1962 will not detract from the acceptability of the Mahazar. As has been contended by the Senior Departmental Representative the seizure of the goods is not capricious but one based on information. Section 110(3) merely says that any documents that is relevant to investigation can also be seizure during the course of search. I therefore, reject the submission of the Counsel with reference to the alleged infirmity in the Mahazar. Even if the Mahazar suffers from infirmity it is settled law that the same would not nullify or invalidate the recovery much less the authority's order of adjudication. The plea of the Counsel that the Board itself has observed that the appellant could not have cleared the goods under seizure as baggage is misconceived in law. The submission of the Counsel that the department did not examine the various persons who sold the goods under seizure to him is not legally tenable because under law when the appellant puts forth a plea that he purchased the goods under seizure from various persons it is for him to substantiate the same by acceptable evidence and not for the department to examine those persons. The appellant could have very well substantiated his plea during adjudication by examining those persons and production of various regularly maintained Accounts Books which the appellant admittedly did not do. It was urged by the appellant that the show cause notice is beyond a period of six months. If the dates of the postal endorsement of the postal authorities dated 20.5.1974 and 22.5.1974 are excluded as contended by the departmental representative the show cause notice is within the period of six months. The learned Counsel for the Appellant referred the ruling of the Supreme Court and the Gujarat High Court. I am afraid the ratio of the Supreme Court would not be applicable to this case. The Supreme Court was concerned in that case with the interpretation of a rule under the Municipality Act, in a different context. In respect of the ruling of the Gujarat High Court the Senior Departmental Representative brought my attention to the later ruling of the Madras High Court report in AIR 1974 Madras 5. In the instant case the issue with reference to the issue of show cause notice as to whether it was within a statutory time limit would become academic in view of the fact there has been an adjudication in which the appellant himself has taken part which resulted in an order of confiscation. After the goods are confiscated the goods became vested with the Central Government and they cannot be divested. I, therefore, hold that the infirmity with reference to the show cause notice even if any, would not be very relevant in the context of this case.

6. The appellant brought 30 packets worth of needle pins and float needles along with jet and other articles. In such a situation the appellant would not certainly be permitted to clear the same free of duty and the plea of the appellant that he brought the same to the notice of the Customs' authorities and they allowed him to take it free of duty is incredible. The Appellant could have produced purchase - bills and other Accounts Book at the time of seizure to prove that he purchased them, but he did not produce the same. So the Appellant has not discharged the burden shifted to him.

7. Coming into the question of the quantum of redemption fine and penalty, I find that the goods have been valued at Rs. 15,329/- and the penalty has been levied at more than 100%. I feel this is on the high side and call for reduction. Therefore, I reduce the redemption fine from Rs. 16,000/- to Rs. 10,000/- and consequently reduce the penalty also from Rs. 8,000/- to Rs. 5,000/-. Except for above modification the appeal is otherwise dismissed.


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