Decided on October 23,1991

D.C. Awasthi Appellant


S.L. Peeran, Member (J) - (1.) THE appellant have challenged the correctness and validity of the Order -in -Appeal dated 29 -12 -1989 passed by the Collector of Customs (Appeals), New Delhi by which he has rejected the appeal of the appellant which had arisen before him as a result of remand by the CEGAT, New Delhi vide Order No. A -397/89 dated 27 -9 -1989.
(2.) THE facts of this case are that the Preventive Officers of the Customs, Kanpur noticed an advertisement in daily newspaper 'Dainik Jagran' Kanpur dated 1 -6 -1986 advertising for sale of an Akai VCP alongwith national Video Camera. The officers visited the house of the advertiser, the appellant, on 11 -6 -1986 and searched the same under search warrant. He was not in his house at the time of the search and the search warrant was executed on his wife Smt. Kira Awasthi in presence of two independent witnesses. On search, goods of foreign origin, valued at Rs. 41,000/ - as mentioned in panchnama/recovery memo dated 11 -6 -1986 were recovered. His wife, on demand, could not produce any valid proof showing valid import/acquisition/possession of the goods recovered on the spot and that she admitted that the seized goods had been brought into India by her husband in the month of April, 1986, for which documents showing customs duty were not available with her. Nor any such documents showing legal import were recovered during the course of search or even submitted at a later date by the appellants or his wife. The wife of the appellant, also revealed to the Preventive Officers that the seized goods had been advertised for sale in the said newspaper. The appellant was summoned for giving a statement by the Superintendent (Customs) Central Excise Office, Kanpur on 15 -7 -1986, 25 -7 -1986, 30 -10 -1986 but he did not turn up for that purpose. Therefore, the Asstt. Collector (Customs) on reasonable belief that the goods were of foreign origin, had been brought to India in contravention of the provisions of the Customs Act, issued a show cause notice dated 9 -12 -1986 to the appellant to show cause as to why action should not be taken for contravention of the provisions of Section 11 of the Customs Act, 1962 inasmuch as the goods had been brought inside India in contravention of Order No. 17/55 dated 7 -12 -1955 issued under Section 3(1) of the Import and Export (Control) Act, 1947 as made applicable to the Customs Act, 1962 under Section 3(2) of the said Act. It was stated in the show cause notice that the burden of proof that the seized goods were not smuggled one, lies on the appellant as contemplated under Section 123 of the Customs Act. The statement of appellant's wife and panchnama was relied upon in the show cause notice.
(3.) THE appellant had sent a letter dated 25 -10 -1986 stating that he had met with a road accident on 18 -10 -1986 and he had been admitted in Lakhanpur hospital and that he would attend the office to give statement after being well. As he did not appear the said show cause notice was issued to him. He sent a letter on 9 -12 -1986 reiterating his earlier submission made in his letter dated 25 -10 -1986. Therefore, he was afforded with further chances on 24 -1 -1987 and 14 -4 -1987 to file his reply. As he did not do so, the Deputy Collector passed the impugned Order -in -Original dated 18 -6 -1987 by which he ordered for absolute confiscation of the seized goods under Section 111 of the Customs Act, 1962 and also imposed a penalty of Rs. 1000/ - under Section 112 of the said Act. The appellant filed an appeal under Section 128 of the Customs Act before the Collector (Appeals). In the Memo of appeal, he has stated that he had gone to Libya in April, 1976 and was doing business there upto July, August, 1986 and finally returned on 13 -8 -1986. He has given the detail of his short visits and has submitted that during his short visits, he had been bringing goods of foreign origin and also on his final return on 13 -8 -1986, quite a few goods of foreign origin were brought by him under Transfer of Residence Rules. He has explained in great detail the reason for the non -filing of the reply and defaulting in appearing before the Asstt. Collector as due to his accident and in support of his pleas, produced medical evidence also. In his grounds of appeal, he had complained of violation of principles of natural justice. In Annexure A to the Memo of appeal (which was produced before me at the time of hearing of this appeal), it is seen that 11 documents pertained to Medical treatment, the details of which are given in type; while Sl. No. 12 and 13 are inserted in ink which states "Sl. No. 12 - Copy of payment voucher dated 23 -9 -1987; Sl. No. 13 copies of customs receipts for goods seized". These details at Sl. No. 12 and 13 are in dispute before me. The Appeal Memo gives all the details of medical treatment and speaks of certificates annexed in Annexure A in Sl. No. 1 to 11 in type. There is absolutely no mention of Sl. No. 12 and 13 or its details in the entire Appeal Memo. The appellant has not pleaded anything about Sl. No. 12 and 13 in his Appeal Memo before the Collector (Appeals). Sl. No. 12 is said to be payment voucher dated 23 -9 -1987 which copy is not placed before me. Sl. No. 13 refers to Customs receipt. The zerox copy produced before me refers to one baggage receipt E No. 138126 dated 7 -7 -1986 for payment of duty of Rs. 3,145/ - by one Suche Nand Bajaj for Akai VCP. The appellant has produced before this Bench one zerox copy of certificate dated 18 -5 -1986 which reads as follows - "Certified that the goods covered by the Baggage receipt No. SBI 138126 dated 7 -2 -1986 has been mortgaged to Shri Dharmesh Chandra Awasthi son of Shri Shri Shankar Awasthi resident of 23; MIG Indira Nagar, Kanpur. The goods are redeemable within one year and an interest at the rate of 10% shall be payable. Sd/ - Suche Nand Bazaz 18 -5 -1986" The appellant's appeal was rejected by the Collector (Appeals). Hence, they filed an appeal to this Tribunal No. C -2067/89 which was disposed of by final Order No. A -397/89NRB dated 27 -9 -1989 by an order of remand by two Members. By this order, the Bench had noted that the Collector (Appeals) had decided the matter ex parte and hence after hearing Sh. A.K. Jain, Advocate, remanded the matter to Collector (Appeals) to decide the appeal on merits affording reasonable opportunity to the appellants to defend themselves. The copy of ex parte order of Collector (Appeals) in Order -in -Appeal dated 5 -4 -1989 has not been produced before me at the time of hearing of this appeal. Shri A.K. Jain, learned Advocate has furnished me with the copy of the Memo of appeal before the Collector (A) and the zerox copies of the certificate referred to above and on back of this certificate, the zerox copy of the Baggage receipt No. 138126 is extracted. ;

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