ORDER
K.K. Agarwal, Member (T)
1. The appellant is engaged in the manufacture of sized yarn. On the basis of an information, the officers of Customs visited their units and found 300 cartons of imported polyester yarn having “HAULON” marka weighing 7800 Kgs. which was admittedly received by the appellants without cover of any duty paying documents from an 100% E.O.U. by the name of M/s Millat Fiber. The proprietor of the appellants’ firm admitted the receipt and named the broker through whom this yarn was received and the broker also admitted the delivery of this yarn.
2. In addition to the above yarn the officers also recovered loose yarn weighing 4800 Kgs. bearing “HAULON” marka which again was admitted by appellant as having been received from the same broker Shri Pankajbhai Patel. The broker also admitted the delivery of the seized 4800 Kg. yarn which according to him was purchased from another broker from Bombay. The present proceedings are confined to the seizure & confiscation and demand of duty relating to 4800 Kgs. of the yarn.
3. It is the appellants’ contention that this yarn was indigenous yarn and they have produced the invoices and bills relating to them which were not considered by the adjudicating authority and have been brushed aside by the Commissioner (Appeals). It was submitted that even though the Commissioner (Appeals) has admitted that they were not importer of the yarn still he has chosen to demand duty from them as they have redeemed the goods. It was contended that they have taken the provisional release of the goods considering it to be indigenous yarn and paid the duty in the belief that duty will later on be refunded to them. In view of this, it was submitted that demand of duty and imposition of penalty and fine were incorrect and needs to be set aside. It was also argued that though the show cause notice was issued in the name of proprietor, fine and penalty has been imposed on the firm.
4 Learned J.D.R. on the other hand submits that these goods were bearing foreign trade mark “HAULON” and the description of the goods did not match with the description given in the invoices later on produced by the appellant and that the broker has admitted that the goods were of foreign origin and were delivered by him and that polyester filament yarn is notified under Section 123 of the Customs Act, 1962 and therefore the burden of proof is on the person from whose possession goods are seized. The appellants have failed to produce any evidence to establish that the goods were duty paid and hence the goods have been correctly confiscated and the redemption fine imposed.
5. I have considered the submissions of both sides. 1 find that in this case 4800 Kgs. of yarn on cheeses was recovered from the appellants’ premises and were bearing foreign mark and both the appellant and broker from whom this yarn has been received have admitted that the goods were imported and were supplied without any duty paying documents. Even though, the appellants have subsequently retracted his statement, the broker has till date not done so and therefore, there is sufficient corroborative evidence. The invoices and bills produced by the appellants do not match with the goods and since the denier of the goods was mentioned on the spool, there was no need of drawing any samples etc. as has now been contended by the appellants. The goods have therefore been correctly confiscated and released on redemption line. Since the appellants have received the goods, they are liable to penalty under Section 112(b) of the Customs Act, 1962.
6. So far as demand of duty is concerned, the Commissioner (Appeals) has correctly held that since the appellants are not the importer, duty is not demandable from them. However, since they were in the possession of the goods and have exercised their option to redeem the goods under Section 125 of the Customs Act, 1962, the necessary consequences have to follow and they will be liable to pay fine and duty on redemption. The plea that show cause notice was issued to the proprietor, but the fine and penalty have been imposed on the firm is also not tenable as in case of proprietary firm, the proprietor and the firm are same thing. In view of above, appeal having no merit is rejected.
(Pronounced in Court on 4.05.06)