HEENA CHEM Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE are three Appeals arising out of a common order dated 30 -7 -1998 passed by Commissioner of Customs and as such are being disposed of by a common order.

(2.) BRIEFLY stated the facts are that the Officers of the Directorate of Revenue Intelligence, Varanasi checked the Truck No. HR -07 -8592 at Naubatpur Check post on 15 -2 -1997 which was found to be loaded with 30 bags of Gam -bier weighing 1420 kgs. valued at Rs. 1,56,200/ - 50 cartons of rubber chemical weighing 1100 kgs. valued at Rs. 8,400/ - and 52 cartons of Chinese Toys valued at Rs. 1,79,800/ - alongwith miscelleneous Indian goods valued at Rs. 2,61,943/ -. As the gambier, rubber chemicals and toys were of foreign origin and papers relating to legal import thereof were not available with Driver, Shri Gurunam Singh, all the goods were seized alongwith Indian goods used for concealing the smuggled goods under Customs Act, 1962. The truck was also seized under the provisions of Customs Act. The documents revealed that gambier was consigned to M/s. Jain Co. Exports, Delhi by M/s. Heena Chem, Calcutta; rubber chemical was consigned to M/s.Ram Awatar Kishan, New Delhi by M/s. Standard Chemical Co., Calcutta and the Toys were consigned to M/s. Best Toys Mfg. Co., Delhi by M/s. Express Clearing Agency, Calcutta. The goods were booked by M/s. High Speed Carriers Calcutta. The Commissioner of Customs, under the impugned order, confiscated absolutely Gambier, Rubber chemicals and toys under Section 111(d) of Customs Act; confiscated Indian goods under Section 119 of Act with an option to owner to redeem the same on payment of fine of Rs. 55,000/ -; confiscated truck with an option to redeem the same on payment of fine of Rs. 1,50,000/ - and imposed penalty of Rs. 50,000/ - each on H.C. Heena Chem, M/s. High Speed Carriers and Best Toys Mfg. Co. and Rs. 2,000/ - on Shri Gurunam Singh, Driver, holding that the driver in his statement dated 15 -2 -1997 and 16 -2 -1997 had stated that it was within his knowledge that goods of foreign origin were illegally imported and loaded in his truck High Speed carriers; that Suresh Mehta, Proprietor of Heena Chem Ltd., in his statement dated 5 -3 -1997, admitted to have gambier of third country origin from M/s. Shah Trading Co., Cuttack; that summons issued to Shah Trading Co. were returned undelivered by the Postal Authorities with remarks "not known"; that M/s. Jain Co Export have denied to be dealing in Gambier. The Commissioner observed that charges levelled against rubber chemical have gone uncontested as no one claimed the chemical and Ram Awatar Kishan of Delhi was found to be non existent. Regarding Toys, the Commissioner held that the Toys were complete in all respect and the sticker of assembly kit was affixed to mislead the officers; that driver in his statement had mentioned that the Toys were of Chinese origin but were imported from Hong Kong. The Truck was confiscated as the same was issued for transporting smuggled goods with full knowledge and connivance of driver, person in charge of the truck, and of transporter High Speed Carriers whom the truck was attached to.

(3.) SHRI P.K. Sengupta, Consultant, submitted on behalf of M/s. H.C. Heena Chem that on being informed of the seizure, they had despatched a copy of Bill of Entry No. 1451, dated 21 -1 -1997 and cash Memo No. 2/97, dated 6 -2 -1997 of M/s. Shah Trading Co., Cuttack regarding sale of the Gambier of 3rd country origin; that Suresh Mehta, Proprietor, in his statement dated 5 -3 -1997, stated that the 1420 kgs. of Gambier purchased from Shah Trading Co. was a part of the total consignment of 10 M.Ts. of Gambier imported under Bill of Entry No. 1451, dated 21 -1 -1997 by Shah Trading Co.; that the result of investigation carried out by the Officers of Directorate of Revenue Intelligence is not mentioned in the impugned order; that the Department had not verified the genuineness of the Bill of Entry and charges had been levelled against them on mere hypothetical calculations and sermises; that the burden of proof rests with the Department to prove that the seized gambier was of smuggled nature; that the seized goods was neither within the purview of Chapter IVA of the Customs Act nor it was notified under Section 123 of the Act and accordingly onus of proof is on the Department which has not been discharged. The ld. Consultant, further, submitted that the findings of the Commissioner that Gurnam Singh, Driver, had deposed in his statement that Gambier was illegally imported is not correct; that the Driver has not deposed like this at all in his statement, that he had not deposed about the smuggled nature of the goods; in his statement dated 15 -2 -1997; that in the second statement dated 16 -2 -1997, he denied about the smuggled nature of the goods. He also mentioned that some marks were found on seized gambier to show the goods were imported from abroad.