ORDER
Gowri Shankar, Member (T)
1. The facts leading to these three appeals briefly are as follows :
2. The officers of the Directorate of Revenue Intelligence (DRI) seized on 28-10-1996 at Varanasi, 40 bales of silk yarn. The seizure was in the premises of a transport company M/s. Vaishali Transport and Forwarding Agency, appellant in Appeal No. C/52/98. The DRI investigation showed that the consignment had been booked from Bombay by Sajjan India Ltd. (SIL for short), Bombay, appellant in C/45/98, consigned to Microweb Communication Pvt. Ltd. (MCPL for short) at Varanasi, appellant in C/46/98. Rajkumar Sharma, Director of MCPL told the officers that the consignment was part of 140 bales imported in a consignment by SIL and cleared ex-bond from Bombay against passbook without payment of duty. This was confirmed by the representative of SIL. DRI did not accept this stand and issued notice proposing confiscation of the silk under Clause (d) of Section 111 on the ground that it had been imported without the licence and proposing penalty on all three under Section 112 of the Act. Various submissions were raised by the noticees before the Commissioner of Customs. He, however, did not accept them. He held silk to be raw silk falling in the negative list of the Import Policy and unauthorized-ly imported and ordered its confiscation absolutely. He imposed penalties under Section 112 (b) on all the three. Hence these appeals.
3. It is the contention of common advocate for all three appellants that reasons given by the Collector for not accepting the claim that the goods formed part of the consignment imported and duly cleared at Bombay are entirely unacceptable. He analyses before us each of the reasons and in addition contends that positive evidence in the form of markings of the goods, statements of persons, the correspondence between the weight between (sic) the imported goods and the seized goods established the appellant’s claim. The departmental representative adopts the reasoning in the impugned order contends that the Collector has crucially and correctly dealt with the evidence in question.
4. Let us consider now the reasons that the Collector relies upon for his finding that the goods were not part of the lot imported by Sajjan. He first finds that the sale price of SIL Rs. 850 per kg to be lower than the value of the ex-bond bill of entry (Rs. 1097 per kg.). We find satisfactory the explanation offered by the appellant. The invoice of the seller of the goods abroad was @ US $ 20 per kg which is Rs. 700/- approx. (at rate of exchange then prevailing) and the subsequent sale is at a higher price. The value in the ex-bond bill of entry includes the element of duty payable at 50% on the assessable value, which itself include the element of landing charges. This is shown in the bill of entry although the duty was not paid being exempted by notification, the import being under the passbook scheme.
5. The Collector next relies upon the absence of any markings on the seized bales and what he finds unsystematically invoicing. Neither of these stands up to examination. The panchnama itself shows that 20 out of 40 bales had marked “CRS” the initials of the supplier at Hong Kong. There was explained by the appellant to the (sic). It also shows that some of the bales had on them a label of the manufacturer in the People Republic of China of the goods. The goods were covered under 2 invoices and both of them have the same number. This was claimed as due to oversight and in any case is not of significance to conclude that the goods were not part of the imported lot. The significance of the absence of records at Varanasi in the possession of MCPL other than cash bills, escapes us. It is not shown that MCPL was not located at Bombay (which is what the appellant had said) nor that such records were not found in Bombay. The failure on the part of Rajkumar Sharma to given full particulars of the buyer of an earlier consignment of 40 bales again has no direct relevance to the smuggled nature of the goods imported. The circumstance in which Collector finding suspicious under which Sarogi, apparently the agent of MCPL at Varanasi handed over the transport documents for a consignment modi to be passed on to transporter, did not appear to us affect on the issue except marginally. If cannot result in a conclusion that the goods were smuggled. The fact that the bill of lading showed the exporter to be a Hong Kong firm, while labels on the bales were that of China National Silk International Corporation is explained by saying that the former was the exporter and the latter the manufacturer of the goods, in mainland China.
6. The other reason advanced by the Collector does not seem to us to have relevance directly or even indirectly to the fact in issue. Whether summons issued on Sharma was returned and delivered was not established. Even so unless it is found (which it is not) that office of the company did not exist in the stated address, it is not of relevance. The Collector apparently mixed up the address at Ranigunj at Varanasi of MPCL and the address at Bombay. While the Collector narrates that 20 of the 40 packages were found packed in “chatais” (woven mats) while other 20 were not what he concluded for this is not clear. The absence of any Custom House tag or seal on these bales is not at all suspicious. There is no practice in the Custom House of putting tags on goods cleared by it.
7. As against this the panchnama dated 14-2-1997 shows the close correspondence between each of the packages in the packing list attached to the invoice for import and weight actually found. This fact, and the fact of the packages containing Chinese marking, is itself goods are of Chinese origin, saying so in more than one place in his order. It is therefore to be concluded that the Collector has not been able to rebut the stand taken by SIL and MPCL that the goods formed part of the consignment imported by it and the evidence as a whole supports this stand. The fact that the appellant had earlier sent to Varanasi 40 bales imported out of 140 bales is also in support of the case. Silk was not notified under Section 123 of the Act and the burden of proving it to be smuggled was on the department.
8. The Collector lays emphasis on the fact that the test of a sample of the seized goods by the Central Silk Board at Bangalore showed it to be mulberry raw silk yarn. He concludes from this that the goods were raw silk, import of which was in the negative list at the relevant time. It having been held that the goods were part of the lot cleared by the appellant, it is not necessary for us to deal with this matter.
9. We therefore find that the goods were not liable for confiscation and consequently no penalty imposable.
10. All appeals are allowed. Impugned order set aside. Consequential relief.