VIJAY BAJAJ Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The appellant Shri Vijay Bajaj is a small trader. His shop is in Lajpat Rai Market, Delhi -6. On 4 -2 -99 Customs Officers visited his shop and seized 2400 'FUDS' make Alarm Clocks made in China valued at Rs. 1,44,000/ -. In a statement on the date of seizure Shri Bajaj informed that Alarm Clocks were purchased from different persons without bill/invoice. These Clocks were confiscated under an adjudication order dated 23 -10 -2000 for being illegally smuggled into India and Shri Bajaj did not have any Bill/Invoice to prove the legal possession of the goods. Shri Bajaj filed an appeal before the Commissioner of Customs (Appeals). The Commissioner (Appeals) confirmed the adjudication order holding that the goods were liable to confiscation under Section 111(d) of the Customs Act.

(2.) Appellant challenges the above order on the ground that it is neither sustainable in law nor in the facts of the case. It is being submitted that Clocks in question were eligible for restricted import and that the appellant had purchased the goods on the day previous to their seizure from one Mr. Uday Mr. Shah owner of M/s. EMSON Engineering Enterprises. An invoice bearing Sl. No. 120, dated 3 -2 -99 has also been relied on. It is the submission of the appellant that his statement dated 4 -2 -99, wherein he stated that the Clocks were purchased from different persons without bill or invoice, had been extracted from him, as the goods, in fact were purchased from M/s. EMSON Engineering Enterprises. Reference has been made in this connection to the appellant's telegram dated 5 -2 -99 to the Commissioner, complaining FUDA Alarm Clocks had been seized by preventive officers and "valid duty paid documents produced but not taken on records". The learned Counsel for the appellants has also pointed out that in respect of imported goods, retail dealers could not be expected to produce proof of their legal import or payment of duty. He has relied on the decision of this Tribunal in the case of Tayyab Junus Khatri and Ors. v. Commissioner of Customs (Prev.), Mumbai - 2002 (139) E.L.T. 433 (T) - 2002 (48) RLT 992 (CEGAT - Mum.) in support of his submission. Learned Counsel has also pointed out that the lower authorities were not justified in rejecting the explanation about proper purchase of the Clocks based on a statement of Shri Shah that goods were actually sold only on 5 -2 -99 and that sale invoice date was shown as 3 -2 -99 only at the request of Shri Bajaj. His contention is that the relevant fact is that Shri Shah had admitted that he had imported the goods and had given particulars of the import and had stated that the goods had been sold by him to Shri Bajaj. His statement that goods were sold only on 5 -2 -99 was incorrect.

(3.) The learned SDR has pointed out that these goods required licence for import and since the appellant could not produce any evidence about their legal import on the date of search and since the invoice subsequently produced has been stated to be of a subsequent date, the confiscation of the goods was justified. He also pointed out that watches remain specified under Section 123 of the Customs Act and if that entry did not cover alarm clocks another entry (electronics goods) under Section 123 would cover them and in either case, burden of proof regarding legal import shifted to the possessor.