MOHD. ASLAM Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) BRIEFLY stated the facts of the case are that on 28 -7 -1995, Preventive Officers of the Customs searched the business premises of the appellant and seized wrist watches of foreign origin valued at Rs. 25,100/ - (CIF) and Rs. 75,350/ - market value in India. In his statement given on the date of seizure the appellant admitted that he had no documentary evidence to prove the licit acquisition and possession of the imported goods. Later at the stage of adjudication, the appellant took a plea that the watches of foreign origin were purchased from passengers who had cleared them on payment of duty and the watches fixed with foreign origin movements were assembled in India. The appellant repeated the plea before the Commissioner (Appeals) also. The authorities below did not accept the contention of the appellant and the Commissioner (Appeals) in the impugned order observed that both wrist watches and watch movements are notified items under Section 11 of the Customs Act and they are also covered under Section 123 of the Customs Act. Therefore, the onus was on the appellant to prove the licit importation of such goods. As regards the baggage receipt pertaining to Shri Bhajan Singh Kapoor dated 8 -3 -1994 produced by the appellants as proof of legal import of the watches, the Commissioner (Appeals) declined to give any credence to the said documents by observing that if the watches were cleared in 1994, nothing prohibited the appellants to keep a record of the same and inform the Seizing Officer at the relevant time. As regards the watches assembled in India, Commissioner (Appeals) held that the appellants had not produced satisfactory evidence from the manufacturer about the sale of the said watches to the appellants.

(2.) AS a result, the Commissioner (Appeals) confirmed the order -in -original directing absolute confiscation of all the 275 wrist watches and imposition of personal penalty of Rs. 10,000/ - on the appellant.

(3.) LD . Advocate for the appellant Shri S.C. Puri contended that though the appellant had initially stated that he had no bills or other documents to show the licit import of the watches/watch movements, he had subsequently submitted to the authorities and invoice dated 24 -7 -1995 issued by M/s. Rajesh Enterprises, H -236, Naraina Vihar, New Delhi and a receipt No. 156286, dated 8 -3 -1994 issued by the Collector of Customs, Sahara International Airport Bombay and a cash memo dated 7 -6 -1991 issued by the Customs and Excise Retail Shop to M/s. Rodenise (India), 6/9 Kirti Nagar Industrial Area, New Delhi as proof of licit import of watch movements as well as watches. The adjudicating authority as well as the first Appellate Authority had not taken into account the said documents and had not given any finding as to why the said documents should not be relied upon except the observations made by the Commissioner (Appeals) stating that the appellants should have kept the record of the documents and produced them before the Seizing Officer. Ld. Counsel had also drawn and relied upon the Tribunal's decision in Standard Watch Company v. Collector of Customs reported in 1990 (47) E.L.T. 571 in which Tribunal had observed that merely because movements of watches were of foreign origin, watches assembled in India with movements of watches of foreign origin cannot be considered to be the wrist watches of foreign origin. The confiscation of watches of this basis had been set aside by the Tribunal in the said case. Ld. Counsel submitted that the initial onus of producing evidence of licit import of the goods had been discharged by the appellant by producing the three documents relating to the import of watches/watch movements. It was for the Department to investigate the said matter further and to establish that the documents produced ware fake or they do not relate to the seized goods. Ld. Counsel contended that the impugned order should not be sustained since the appellant has discharged the onus of proving the licit import of the goods with production of the three documents produced before the adjudicating authority.