SAYEED AHAMED Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS appeal arises from OIA No. 70/2003 -Cus. and 69/2003 -Cus., dated 7 -2 -2003 arising from OIO No. 9/2000, dated 9 -10 -2000 passed by the Additional Commissioner. The facts of the case are that on the basis of intelligence gathered by Revenue, Raw Silk said to be of foreign origin, which was despatched from Delhi by rail parcel was seized at Parcel Complex of Southern Railways on 24 -12 -1999 when the appellants came to clear the same. The goods were confiscated and the appellants were issued with show cause notice on the basis of several statements recorded after investigation and asked to show cause as to why they should not be penalised and the goods viz. Mulberry Raw Silk be required to be seized as the same is prohibited for import under the Import Trade Control Order No. 17/55 dated 7 -12 -1955 issued under Section 3(3) of the Foreign Trade (Regulation and Development) Act, 1992 and it was found that the appellants had not been carrying the valid import permit and licence. The appellants case is that the goods were not smuggled ones and they had purchased them from open market in Delhi and it was not of Chinese origin, but of Kashmir origin. The appellant, during the course of proceedings had further challenged the claim of the Revenue that the item is a foreign branded goods and on the ground (a) that there were no markings of any foreign country on the seized goods; (b) that the department had not obtained any opinion from any experts of CSDRI who alone have the expertise to give an opinion about the nature of the goods being of foreign origin or not; (c) that the statements recorded from one Shri A. Satyanarayana Shetty, a trader, pertaining to the origin of the goods is not sustainable as he has not been provided for cross -examination despite several requests made by them; and (d) the Mahazar witnesses were also not produced for cross -examination despite the request time and again.

(2.) HEARD both sides in the matter and I have perused the entire judgments in the case. The learned Counsel reiterated the submissions made in the Grounds of Appeal and contended that it was for the Revenue to prove that the goods were of smuggled ones and of foreign origin and foreign branded. It is his contention that the initial statements given by them were resiled in the reply and the statements were given under coercion. He submits that in terms of the judgment rendered by 5 -Members of the Apex Court in the case of Amba Lal v. UOI and Others - 1983 (13) E.L.T. 1321, the onus of proof of the goods being smuggled ones is on the Revenue and is required to be discharged. It is his submission that A. Satyanarayana Shetty is not a competent person to speak about the foreign nature of the goods. He was also not produced for cross -examination thereby the proceedings have been vitiated. He submits that it is a well settled position when a crucial witness has not been produced for cross -examination, then that portion of the evidence is required to be discarded. It is his submission that when this evidence is discarded then the nature of the goods being of foreign origin is not established. He submits that the Tribunal, in the case of Sajjan India Ltd. v. CC, Lucknow - 1999 (111) E.L.T. 903 (Tribunal) in a similar circumstance has held that the seized Silk Yarn from the appellants were not of foreign origin as there was no foreign marking on the same. The Tribunal had accepted the plea that during the relevant period, the goods were not notified ones. He submits that once the goods are not notified, they are not liable to be held as smuggled goods in terms of the judgment rendered by this Tribunal in the case of N.A. Khan and Others [2005 (182) E.L.T. 494 (Tribunal)], by Final Order Nos. 1934 -1936/2004, dated 7 -12 -2004. He submits that the Tribunal has referred to a large number of judgments with regard to the aspect pertaining to the goods being not liable for seizure when the burden to prove of its smuggled nature has not been established. He further relies on the following judgments.

(3.) THE learned SDR defends the order and submits that the appellants had admitted the nature of the goods being of foreign origin and, therefore, the burden has shifted on them to show that they had a valid licence to import the same. He further submits that a trader is a competent witness with regard to the nature of the goods being of foreign origin. He submits that the judgment of the Tribunal rendered in the case of Sajjan India Ltd. is distinguishable as the statement of the appellant therein was that the goods belonged to him alone and it had been a portion of the consignment imported by him. While in the present case, the facts are distinguishable. He submits that non -providing of Shri Satyanarayana Shetty for cross -examination will not vitiate the proceedings. He submits that once the party has admitted the goods to be of foreign origin, then the burden shifts on them and he has not discharged the same. Therefore, the facts of the case of Anil Gupta v. CCE, Kanpur -I - 2001 (135) E.L.T. 358 (Tri -Del.) would apply to the case in hand. The learned Counsel submits that this judgment is distinguishable as there was marking on the goods while in the present case, there was no marking.