Decided on April 16,1991

Momin Baksh Appellant


- (1.) THIS is an appeal filed by the appellant against the order passed by the Central Board of Excise & Customs, in Order No. 260A of 1980. In terms of that order the Board confirmed the orders passed by the Collector of Customs in imposing penalty on the appellant, but the Board reduced the penalty to Rs. 30,000 on the appellant form of Rs. 1 lakh imposed on the firm. The charge against the appellant was that jungle cock necks feathers and skin of jungle fowl which figure in Schedule I, Pt. A of the Export Control Order were exported by the appellant to USA which was banned. It was the case of the department that the appellant misdeclared the description, value and quantity of the goods in the shipping bills and invoices and GR I forms knowing fully well that those were banned items.
(2.) THE facts of the case are that during investigation the USA officials searched the premises of some US firms and seized some incriminating documents and correspondence involving the appellant. Those firms were prosecuted by the US Government. The photostat copies of those documents were forwarded to the CBI which were handed over to the Customs Department at Calcutta. The case of the department is that seized documents and correspondence revealed that the appellant had knowingly exported banned items of jungle fowl necks and jungle cock necks between 1966 to 1969 by concealing those banned items amongst the other non -prohibited necks like domestic cock necks, domestic game cock necks. Accordingly, a show cause notice was issued to the appellant by supplying the photostat copies of those documents obtained from the US Government and annexure 'J' was also given in the show cause notice wherein the prohibited items were shown and the items permissible were also shown and the allegation was that the items permissible were also liable for confiscation as they were used for concealing the banned items. The appellant sent a reply and after adjudication the Collector passed the order which was upheld by the Board, though they reduced the penalty on the appellant to a sum of Rs. 30,000 only.
(3.) THE learned Advocate, Sri Samir Ghose, appearing for the appellant, contended that the show cause notice issued in this case is barred. In support of his contention, he relied on the decision reported in 1986 (26) E.L.T. 873. He also contended that in this case no cock necks are seized to show that they are jungle cock necks. It was also contended before me that the supply of photostat copies is not sufficient to prove the guilt against the appellant. It was his contention that, in the absence of the original documents, it cannot be said that the appellant had exported jungle cock necks. He also contended that these photostat copies are not admissible evidence against the appellant to come to the conclusion that he had committed the offence of exportation of the banned item. Sri Samir Ghose drew my attention to the annexures annexed to the show cause notice. He contended that in all those annexures top grade cock necks and B grade cock necks were mentioned. He also contended that in the first annexure it is only mentioned as J.C.N. He, therefore, contended that none of the annexures will show with certainty that the appellant exported jungle cock necks or contraband cock necks. In such circumstances, it was his contention that there is no case made out against the appellant. He also contended that what was alleged against the appellant is fraud and the fraud cannot be committed by the appellant alone. If that were to be so, he contended that action should have been taken against the officials who are supposed to check those consignments. He, therefore, stated that the very fact that these consignments were passed by the officers goes to show that what was sent was admissible cock necks and not contraband cock necks. He also contended that show cause notice cannot be issued by the Assistant Collector, and the same should have come up by way of revision by the higher authorities. It was his contention that when the consignments were already passed, such a show cause notice by the A.C. is not maintainable. In support of that contention, he relied on the decision reported in 1986 (26) E.L.T. 873. He also relied on the decision reported in 1989 (41) E.L.T. 464. The learned SDR, Sri M.N. Biswas, appearing for the respondent Collector, contended before me that the facts are not disputed for the first time in this appeal by stating that only high grade cock necks and B grade cocknecks were mentioned in the annexures. He contended that these should have been raised before the lower authorities or the first appellate authority. Sri Biswas contended that in departmental proceedings, the question of strict proof does not arise. He stated that the same has to be determined by the probability of the case. In this connection, he invited my attention to the decision of the Supreme Court in Bhormull's case reported in 1983 (13) E.L.T. 1546. He also relied on the following decisions in this regard : - (i) 1986 (26) E.L.T. 159; (ii) 1988 (33) E.L.T. 433 (Tribunal) = 1988 (14) ECR 485. He, therefore, contended that a mathematical precision is not required for proving the guilt of the appellant in this departmental proceeding and the same has to be decided on the probabilities of the case. In this connection Sri Biswas invited my attention to the order -in -original, and particularly, from pages 2 to 6 of the order. He took me through these portions of the order in detail. He contended that in annexure 'J' the department had clearly stated what are the banned items which were exported. He also contended that the permissible items which were used for concealing the banned cock necks were also furnished and all the goods were liable for confiscation under Sections 113, 118 and 119 of the Customs Act, 1962. He also contended that in this case the question of time bar does not apply, because the goods are not seized. It was his contention that the bar under Section 110(2) if any, will apply only with respect to seized goods and the proceedings of penalty can be taken up by issuing a show cause notice even after a period of six months. Sri Biswas also took me through the relevant portions of the order -in -original and contended that the question of photostat copies have been discussed by the Collector. In this connection he contended that the photostat copies of those incriminating documents have been verified by the Government of US and it was confirmed that the signatures on the incriminating documents and letters and also the shipping bills and invoices submitted by the appellant were all written by one and the same person. He also contended that attempt to export is also established in this case as the export itself had already taken place. It was his contention that unless the attempt to export stage is over, there cannot be an export. In this connection, he relied on the decision of the Calcutta High Court reported in 79 C.W.N. 900, which was referred to in the order -in -original. He also relied on the decision reported in 1980 (6) E.L.T. 38. It was stated by him that all the copies of the documents which were sent by the US Government were affixed to the show cause notice, and the appellant had an opportunity to look into those documents. He also invited my attention to several letters written by the appellant to the American firms which were discussed in the order -in -original. Those letters were dated 5 -11 -1966, 16 -1 -1969 and 31 -3 -1968. Sri Biswas also pointed out that as could be gathered from the order -in -original that these letters will prove the case against the appellant. He also pointed out a letter dated 30 -1 -1969 issued by the appellant. Sri Biswas also invited my attention to the letter dated 14 -12 -1967, which was mentioned in the order -in -original.;

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