"FAN : 0532-2400749\n\nTERED / AD\n\nDated: 16/08/2047\n\n66-70776/2017-SM{BR] dated 03/02/2017\n\nCustoms Act, 1962.\n\nC1335/2009\n\n33672009\n\nCH337/2009\n\nCAS 382009\n\nC34 0/2009\n\nC34 1/2009\n\nd 10 transmit herewith a certified copy of order passed by the Tribunal ander section I\n\ntt. Registrar\n\nName and Address of Appellant\n\nSMT. KAMLA SHRESTHA,\nPROPRIETOR OF\nM/S PRAMILA HANDICRAFT\nW/O SHRI HARI KUMAR\nTHAKUR], NEW BANESWAR,\nKATHMANDU, NE ”\nSHRI SHRI RAM S/O SHRI\nMUNNI RAM\nR/O WARD NO, 2, VILLAGE-\nTHANSINGH, DISTT-\nNUWAKOT. NEPAL\nSHRI CHANDRA PRAKASH\nBATT\n8/O SHRI BALRAM BHATT,\nJANKI TOLA, WARD NO, 18,\nMAHENDRANAGAR,\nKANCHANPUR, NEPAL.\nSHRI HART KUMAR\nTHAKURI\nS/O SHRI YATAK BAHADUR\nTHAKURI, R/O NEW\nSWAR, BUDH NAGAR,\nNEPAL.\nSH MERAJ ALAM\nS/o Sh Nek Mohd. Paknajhol,\nward no 16, Kathmandu, Nepal.\nSM'T PRAMILA SHRESTHA\nD/o Smt. Kamla Shrestha, New\nBaneswer, Kathmandu, Nepal.\nSH BALDEV SINGH\nS/o Sh Jogendra Singh Vill-\nChandra Modari\nKhatima,Distt- Udham singh\nNagar, Uttrakhand.\nSH D.D.PANT\nS/o Sh Padam Raj Pant Ward No\n92, Nagtandi, Dashrath Chandra\nNagar, Champawat, Uttrakhand.\n\n\nro\n\n1343/2609\n\nLex)\n\n#2009\n\nFE2B69\n\nSh Jagjeet Singh\n\nS/o Late Sh Surendra Singh R/o\nWard No 7, H.nol], Near\nHanuman Mandir, Degree\nCollege Road,khatima, Distt-\nUdham Sing Nagar, Uttrakhand.\nSH HARISH CHANDRA\nPHULERA\n\nSfo Sh Lokmani Phulera, R/o\nVill- chakarpur, P.O-Chakerpur,\nKhatima, Distt- Udham Singh\nNagar, Uttrakhand.\n\nMR. B.D.GOEL S/O LATE SH.\nMOTILAL GOEL,\nR/O 90/12, IST FLOOR,\nMALVIYA NAGAR, NEW\nDELHI.\n\nName and Address of\nRespondent\n\nSth and 1th floor,\nKendriya Bhawan, Sector -H,\n\n2C, LUCKNOW\n\nHall No. 3,5th and 1} th floor,\nKendriya Bhawan, Sector -H,\nAliganh, Lucknow 226024.\n\n-C.C, LUCKNOW\n\nHall No hand 11th floor,\nKendriya Bhawan, Sector -H,\nAliganh, Lucknow 226024,\n\n-C.C, LUCKNOW\n\nHal seth and 11th floor,\nKendriya Bhawan, Sector -H,\nAliganh, Lucknow 226024.\n\n-C.C. LUCKNOW\n\nHall No. 3,5th and 11th floor,\nKendriya Bhawan, Sector -H,\nAliganh, Lucknow 226024,\n\n-C.C. LUCKNOW\nHall No. 3,5th and 11th floor,\nKendriya Bhawa\nAliganh, Lucknow\n\n\n-Lucknow Prev\n\nAdditional Commissioner,\nstoms(Preventive)\nissionerate Sth Floor\na Bhawan, Sector-H,\nLucknow\nAUCKNOW\nUltarpradesh-226024\n\n“CC. LUCKNOW\n\nHall No. 3,5th and 11h floor,\nKendriya Bhawan, Sector -H,\nAliganh, Lucknow 226024,\n\nth and hth floor,\na Bhav Sector -H,\n\nhand 14th floor,\nKendriya Bhawan, Sector -11,\nAliganh, Lucknow 226024,\n\nd Lith floor,\nBhawan, S'\n\nAliganh, Lucknov\n\nK.K. Anand, Advocate\nA-103, DEF COLONY,\n\nDELHI\n110024\n\nS.S. Arora\n\nBI/71, Safdarjung Enclave,\nNew Delhi,\n\nDelhi\n\n110029\n\ntion, CESTAT, Aahabad\n\n26 Director Pubtications, Customs, Excise. LP. Estate, Dethi\n\nM/s Centax Publications 3, Bhishm Piamab Marg, New Belhi-3\n\nPrt, Lid, £5.\n\n28 Company Law Institute of India Pvt. Lid., No.2 (od no.36), Vaithyaram Street, T. Nagar, Chennai\n\n29 Taxmann Allied Service Pvt, Lid., 59/32\n\nw Rohtak Road, New Delhi-110\n\n30 LAWCRUX Advisors Pvt, Lid, LAW House, 1-8, Sector-i0, Faridabad 12 £003 (Haryana)\n\n31 TaxlndiaGaline.com Pvt. Ltd., 2nd Floor, Vasant Are:\n\nJe, Vasant Kun], New Dethi- 1) 0070\n\n32 Mark Professional Services Pvt. Lid., 108, Everest Bi Aditya Enclave, Hyderabad -- 38\n\n33 The ICFAE sock\n\nS000:\n\ngarjuna HitlPunjagutta Hydera\n\ning Pyt. ltd (laxmanagementind om, FF-19, fst Floor,Crass Riv\n\nardooma Court, Delhi t 16032\n\n35 CDR 36 Office Copy 33-Canard File\nieee\n\no\n\nRSL, Registrar\n\n\nIN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,\nREGIONAL BENCH : ALLAHABAD\n\nAppeal Nos.C/335-344/2009 & 376/2009-CUISM}\n\nArising out of Order-in-Original No.02/Commr./Lucknow dated 27.02.2009\npassed by Commissioner of Customs, Lucknow.\n\n(i) Smt. Kamla Shrestha, Proprietor of M/s. Pramila Handicrafts\n(ii) Shri Shri Ram S/o Shri Munni Ram\n(iii) Shri Chandra Prakash Bhatt\n(iv) Shri Hari Kumar Thakuri\n{v) Shri Meraj Alam\n(vi) Smt. Pramila Shrestha\n(vil) Shri Baldev Singh\n(viii) Shri DD. Pant\n(ix) Shri Jagjeet Singh\n(x) Shri Harish Chandra Phulera\n(xt) Mr, B.D. Goel S/o Late Shri Motilat Goel\nAPPELLANT(S)\n\nVERSUS\nCammissioner of Custom, Lucknow\nRESPONDENT (S)\nAPPEARANCE\n\nMs Surabhi Sinha, Advoc\nShri Pawan Kumar Singh, Supdt. (AR) for the\n\nfor the Appellant ®\nWepartment (s)\n\n‘\n\n‘\n\nCORAM:\n\nARING & PRONOUNCEMENT:\nA NO.=. OTE AOPB E2012\nPer Mr, Anil Choudhary :\n\nOriginal No.02/Commr./Lucknaw dated 27.02.2009 passed by .\n\nCommissioner of Customs, Lucknow.\n\n2 The brief facts are, as per show-cause-notice dated 01.09.2008,\nthat on basis of specific information the officers of DRI intercepted\ntwo trucks bearing registration No.UP 78 AN 0997 and UP 04 A0481\non Khatima-Banbasa road near Chakarpur Canal at Khatima on\n\n11.03.2008 at 16:45 hours. On enquiry the drivers produced the bill\n\nAw\nuf\n\n2. Appeal Nos.C/335-344 & 376/09\n\nof entry No.493/07-08 dated 11,03.2008 along with invoice,\ncertificate of origin, certificate from Handicraft Association of Nepal\nand Registration papers of the vehicles. But, the packing list of the\ngoods was not available with them. As per bill of entry, the\nconsignor of the goods was M/s Pramila Handicrafts, New\nBaneshwar, Kathmandu, Nepal, and the same were cleared from\nLand Customs Station (in short LCS), Banbasaa bans Nepali\nHandicrafts, knitted pants, half pants, taps, trousers and mix items\nand the goods were consigned to Goel Arts & Crafts, Malviya Nagar,\nNew Delhi. On preliminary examination Jeans and sports shoes were\nfound beneath the handicrafts and other Nepalese goods on both\nthe trucks which were not declared in the bill of entry. The goods\nand the vehicles were detained vide detention memo dated\n11.03.2008 and on request of the person in charge, for checking at\nsafe place, both the trucks along with the persons who were present\non the trucks were brought to the office of DRI Regional Unit at\nLucknow. 100% physical examination of the goods loaded on the\nvehicles was carried out in the premises of DRI Office from\n12.03.2008 to 16.03.2008 and the inventory of recovered goods\nwere prepared which are annexed as to the Panchnama. The details\nof the recovered goods are as follows: —\n\nSN T inventory | Description oly Gn | Provisions | Section under\n| | recovered goods | Rs.) | contravened ! which the f\n: i i ‘\n| | [goats ae!\n\nonfiscation\n\ntin, No.0/96 dated | T11(d), G) and\n\nOreadymade |\nments Le. leans,\nShorts, Uppers.\nHalf Pants. Sports |\nj wears, Y-shirts,\nHead bands. j\n\nAt if\n\nPSection ff of the\ncustoms Act\n\nJackets | (Development\n\nble to\n\nm) oof the;\nstoms Act,\n\n3. Appeal Nos.C/335-344 & 376/09\n\nSection i\nFING) of the |\nCustoms Act, }\n| 1962\n\n| i | | Regulation) Act, 199.\nPACH | Undeclared 3 | Section TTT (1) of the\ns kets | ; Customs Act, 196:\n\n: | : ! | readwith\n: pot Bor\n\nF (Developm\ni L | L _Regutation) Act, 1992\n\nsore “Declared ORYSSe30 oor the |\ni | handicrafts items | ustoms Act, |\n! Fused for | 1962 i\nFeconeealment of | i i i\ni undeclared PCO | ! i\n: oods i i :\nae Undectaredt ame as S1. No.l STi Gi and (0\n| miscellaneous H i fof the |\nFYCO goods H | Customs Act, }\n/ | : i | : | 1962 i\n5 PD Undeclared FCO} | Same as SE-No.1 Fedo “y\n: | miseclfancous i :\n| “ said to be | :\n/ personal effets i\n6 » Undeclared Phas Same as SINo.2\ni L sindherats items |\nF P Details of sampte |\n| drawn\n: | LTOTAL\n8 Track No.\n: i N 0907\n\ni Act, £962\n| -do-\n|\n\nor MPrack No. U\ni | 0481\n| Geand Total\n\nOne Chandra Prakash Bhatt, who was accompanying the trucks who\nwas working with the firm M/s Pramila Handicrafts, Kathmandu, in\nhis statement under Section 108 of the Customs Act dated\n45.03.2008 stated that he was instructed by Shri Hari and Shri\nSriram to go to Delhi alongwith the goods. He did not have much\nidea about the goods. One Rajendra Singh, who also worked with\nthe firm M/s Prarnila Handicrafts, in his statement dated 15.03.2008\nstated that he had accompanied the goods from Kathmandu on\n07.03.2008 for Delhi and that the goods were transferred into\nIndian trucks at Mahendra Nagar Bhansar and he did not have much\n\nidea about the details of the goods.\n\nal\n\nwW\nN\n\n3.3\n\n4 Appeal Nos.C/335-344 & 376/09\n\nShri Hari Kumar Thakuri, who was the manager of the firm M/s\nPramila Handicrafts, consignors, in his statement dated 17.03.2008\nstated that handicraft items and Nepalese jackets are being\nmanufactured in the factory of M/s Pramila Handicrafts and same\nitems are purchased from the market and then exported. That this\ntime some packets were already brought to the gadown of M/s\nPramila Handicrafts and he was directed to keep the same beneath\nthe handicraft items. After getting the goods loaded in his presence\nand in presence of owner, he started from Kathmandu on\n07.03.2008 and got the goods cleared from the Nepal Customs and\nIndian Customs on 11.03.2008. That Srnt. Kamla Shrestha is the\nowner of M/s Prarnila Handicrafts and had arranged to put TCO\ngarments instead of Nepalese garments knowingly. That the goods\nwere to be delivered to M/s Goel Arts & Crafts, Malviya Nagar, New\nDelhi that the Bill of Entry was filed by Shri D.D. Pant, an authorised\n\nagent of M/s Goel Arts & Crafts.\n\nShri Sriram, who also worked for M/s Prarnila Handicrafts in his\nstatement stated that this time, some packets were already brought\nfrom some other place and other items were packed by him. The\nowner of the goods of personal effects (as per the inventory to the\nPanchnama), was one Shri R.C. Sharma, Both the owners of the\ntrucks in their statements under Section 108 of the Customs Act,\nstated that they had hired the trucks for freight and that they were\n\nassured that only genuine goods are being transported.\n\nSmt. Kamla Shrestha the owner of M/s Pramila Handicrafts,\n\nKathmandu appeared before the Customs Authority at Lucknow on\n\nad u\nu\n\n\n5 Appedl NOS.L/Soo-TT oY Fare\n\n11.04.2008 and stated that her firm is engaged in manufacturing of\nhandicraft items and trading of the same and aiso manufacture\ngarments. They regularly sold goods to M/s Goel Arts & Crafts, New\nDelhi and M/s Impexco india, New Delhi. Further stated that the\ngoods as per Bill of Entry No.493/2007-08 dated 11.03.2008 belong\nto her firm. Only handicraft items were manufactured in the factory\nand the garments were purchased from M/s K.V. Felt & Bull Craft\nand M/s Fashion Pvt. Ltd., Kathmandu. The miscellaneous TCO\ngarments were loaded due to inadvertent mistake at the time of\nloading of the goods, that the vaiue of seized goods shown in\ninventory made under Panchnama, was correct to her satisfaction.\nThat generally the order was placed by the buyer telephonically and\n\npayment is to be done by cash or by bank draft to her firm.\n\nShri B.D. Goel, proprietor of M/s Goel Arts & Crafts, New Delhi in his\nstatement dated 07.05.2008 stated that his firm had made import of\nhandicraft items from M/s Mandla Arts & Crafts, Kathmandu in the\nyear 2002 and no imports were made in last two years, that his firm\nhad purchased some jewelry, at least three years back from M/s\nPramila Handicrafts, Kathmandu in Delhi, that the documents\nrelating to Bill of Entry No.493/2007-08 dated 11.03.2008 were not\nrelated to his firm and no import order was placed to M/s Pramila\n\nHandicrafts, Kathmandu.\n\nShri O.D. Pant in Als statement dated 21.05.2008, the CHA\n(Customs House Agent), who nad filed the Bill of Entry stated that\nhe had got cleared import of mainly M/s Goel Arts & Crafts, New\n\nDelhi and M/s Impexco India, New Delhi from Nepal Customs as well\n\npe\n\nWw\n\n6 Appeal Nos.C/335-344 & 376/09\n\nas Indian Customs, that the goods covered under the Bill of Entry\nNo.493/07-08 dated 11.03.2008 was got cleared by him and\nCustoms duty was deposited by him after receiving the same from\nShri Hari Kumar Thakuri. The consignment in question was checked\nby Customs officers by drawing samples from the packets kept at\nthe rear end of the truck and that he was unaware of loading of\n\ned Trucks. That no format\n\nChinese garments loaded on the se\nauthorisation was given by M/s Goel Arts & Crafts, New Delhi for\nclearance of the consignment. The seized trucks were released\nprovisionally on furnishing of bond for equivalent value and on\n\nfurnishing of cash security @ Rs.25,000/- each truck,\n\nShri R.C, Sharma in his statement dated 22.07.2008 under Section\n108 of the Custorns Act, 1962 stated that he was a constable of\nCISE, Government of India posted at MPRTC, Devil, that he had met\nwith Shri Hari Thakuri of M/s Prarnila Handicrafts as he used to visit\nIndian Embassy Kathmandu, where he was posted, that on his\ntransfer he handed over some used household goods to Shri Hari\nThakuri for delivering the same at Rohtas Transport, New Deihi, that\nsome goods listed in part D of inventory belong to him and goods\nlisted in part C of the invented did not belong to him, that no\ncharges are paid to Shri Hari Thakur for transportation of his\n\npersonal effects due to his friendship with Hari Thakuri.\n\nIt appeared to Revenue that undeclared third country origin (TCO\nfor short) goods listed in part Avi & C of the Inventory valued at\nRs,34,39,445/- were brought into India in contravention of the\n\nprovisions of Notification No.9/96-CUS(NT) dated 22.01.96 issued\n\na\n\n\n7 Appeal Nos.C/335-344 & 376/09\n\nunder provisions of the Customs Act read with Section 3 of Foreign\nTrade (Development & Regulation) Act, 1992 and were liable to\nconfiscation, the Nepalese handicraft items and knitted garments\ndeclared in the BHE of Entry valued at Rs.2,13,522/- used for\nconcealment of the smuggled TCO goods were liable to confiscation\nas the same were used for concealing the TCO goods, that the\nundeclared Nepalese garments, personal effects and miscellaneous\ngoods (listed in part A2, D & E of the inventory) used for\nconcealment of the smuggled TCO goods were liable to confiscation\nunder Section 11141(d), (1) & (m) read with Section 119 of the\nCustoms Act, 1962. The trucks each valued at Rs.4,00,000/- used\nas conveyance for illegal importation of miscellaneous goods and\ntransportation of the same were also liable to confiscation under\nSection 115(2) of the Act and further on the various persons\ninvolved, penalty was proposed under Section 112 of the Custorns\n\nAct.\n\nSo far the truck owners and their staff namely drivers and cleaners\nare concerned, they pleaded both at the time of Panchnama and\nstatements recorded, also in the replies, that they had taken the\nvehicles to Nepali Shansar on to March, 2008 on the directions of\nthe owners where the goods were loaded on the truck, that the\nclearance of the goods were allowed by Land Customs Station,\nBanbasa on 11.03.2008. That the goods were not loaded in the\npresence of the truck owners and its staff, hence they have no idea\nthat some goods whereof third country origin, as the goods were in\npacked condition and covered with requisite documents and import\n\nof the goods were allowed by the competent officers of the Customs.\n\na\n\n8 Appeal Nos.C/335-344 & 376/09\n\nVide the impugned order, the Learned Commissioner was pleased to\nconfiscate absolutely, the goods as per part-A of the Panchnama\nand totaling 12,861 pieces valued at Rs.32,74,945/- and alse\nconfiscated absolutely the goods as per part-C of the Panchnama,\nholding the same to be undeclared namely water tube boiler,\ngrinding stone, sports shoes, ladies sandals and shoes as the same\nwere found to be undeclared, amounting to be smuggied. It is also\nmentioned that in one bag 1767 pieces of brand tags, on which\nsome thing was written in Chinese and further also written in\nEnglish, from which it appeared that the tags were transported for\nbeing affixed on garments. Further the goods as per part B, namely\nNepalese handicraft, handmade items, valued at Rs.2,13,522/- were\nheld liable to be confiscated and option was given for redemption on\n\npayment of fine Rs.50,000/-, furt\n\nar the goods as details Annexure\nA-ll & E to the Panchnama, being Nepalese garments and\nmiscellaneous undeclared handicrafls valued at Rs.1,78,200/- were\nalso confiscated with option to redeem on payment of redemption\nfine of Rs.45,000/-, further the personai effects valued at Rs.4713/-\nin part B to the Panchnama were also held liable to confiscation with\noption to redeem them on RF of Rs.1,000/-, further the two trucks\nbearing registration numbers are UP-78 AN 0997 and UP-04A 0481\neach valued at Rs.4,00,000/- were also held fiable to confiscation\nwith option to redeem on payment of redemption fine of Rs.25,000\neach. Further penalty were imposed under Section 112 of the Act\n\nmorefully detailed in the table hereinabove.\n\nThe learned counsel on behalf of the appellants have urged that Shri\n\nHari Kumar Thakuri in his statement recorded on 17™ March, 2008\n\nA mon\neC\n<\n\n\n9 Appeal Nos. C/339-344 O 3fO/UF\n\nhave stated that Smt. Kamla Shreshta is the proprietor of M/s\nPramila Handicrafts and she had got the goods loaded heing TCO\ngoods which was not in the knowledge of Shri Hari Kumar Thakuri.\nHe was instructed that on reaching Delhi, he would stay there for\n10-15 days and physically count the number of goods. That Smt.\nKamla Shreshta instructed him to keep the foreign origin goods in\nthe truck, Further in his reply response to show cause, Shri Hari\nKumar Thakuri have stated that the statement dated 17.03.2008\nwas not a free statement but due the reason that he was in custody\nof DRI officers from 11.03.2008 to 17.03.2008 and under such\npressure conditions, he wrote what was dictated to him. Further\nstated that it is not true that Smt. Kamla Shreshta the proprietor of\nM/s Pramila Handicrafts dispatched the goods of foreign origin\n(TCO). He further stated that there appeared to be some mistake,\nwhich occurred at the time of loading of the goods and some\npackets of garments which were for local consumption and were in\npacked condition was inadvertently loaded on the truck. He further\nstated that the Smt. Kamla Shreshta was suffering and bedridden\nfor the last six months and was unable to attend to the business\nregularly and diligently, He further stated that mistake, which\noccurred was done to inadvertence and there was no deliberate\nattempt to dodge the law and/or contumacious conduct on their\npart. He further stated that on some goods, Chinese labels and\nlabels of other countries are affixed, but the material is purely\nIndian. In reply, Smt. Kamla Shreshta, dated 21.11.2008 have\nstated that they have been in this business of export for fast few\n\nyears and never any such incident had occurred earlier. They\n\nSA\n\n6.4\n\n10 Appeal Nos.C/335-344 & 376/09\n\nreceived telephonic orders from the buyers in India and accordingly\nthey dispatched the goods. Further, during follow-up action the\nowner M/s Goel Art & Craft, New Delhi namely Shri B.D. Goel\nrefused to have placed his verbal order for the supply of goods on\naccount of fear and to avoid involvement in the case, although he\nwas a regular customer of theirs, which fact is more than supported\nby evidence of payments made by him to them. They also enclosed\nXerox copy of three cheques dated 16.03.2006 for Rs.2,50,000/-\nand also two other cheques for Rs.2,50,000/- and Rs.92,000/-\nissued by M/s Goel Art & Craft, New Delhi in their favour. She\nfurther led evidence regarding her indifferent health pursuant to\nroad accident since 10° October, 2007 and in support of that, she\nhad produced a copy of discharge summary issued by B & B Haspital\n(Pvt.) Ltd. Gwarko, Lalitpur, Nepal, wherein it is mentioned that she\nis suffering with lower back pain pursuant ta car accident few hours\nback, sustaining injury on back etc. and was advised bed rest along\nwith the other treatment. From the medical documents, it appears\nthat she remained under treatment and bed rest till February-March,\n\n2008.\n\nThe learned counsel further referred to the findings in the impugned\norder at para 40. She urges that the plausible explanation given by\nthe consignor Smt. Kamla Shreshta, proprietor of M/s Pramila\nHandicrafts and her employees have not been found to be untrue.\nShe stated that the exporter also led evidence by way of producing\nthe certificates issued by few manufacturers/traders who have\nstated along with copy of the bills raised on M/s Pramila Handicrafts\n\nthat they have supplied items manufactured out of textiles imported\n\nre\n\n6.2\n\nli Appeal Nos.C/335-344 & 376/09\n\nfrom India. Further states that labels of third countries like China,\n\nThailand etc. are affixed on the garments for commercial purposes.\n\nThe learned counsel urges that this contention is supported by\nrecovery of tags at the time of preparation of Panchnama., It is also\nurged that the Ld. Commissioner have solely relied on the initial\nstatement of Shri Hari Kumar Thakuri dated 17.03.2008 and the\nretraction subsequently his reply has been rejected, relying on the\nruling of Hon’ble Supreme Court in the case of Surjit Singh Chabra\nholding the same to be an afterthought. The learned counsel urges\nthat Ld. Commissioner have erred in ignoring the overwhelming\nevidence, being the medical records of the proprietor/exporter Smt.\nKamla Shreshta; the recovery of the labels at the time of\npreparation of Panchnama of the consignment as well as evidence\nled being the purchase documents and certificates of the suppliers of\nthe goods. Further there is no test report obtained by the learned\nCommissioner. Thus, holding the goods particularly garments to be\nof 3 country origin is basically presumptive and not based on any\ncogent evidence. Further, the evidences led have been rejected\nsummarily without any proper or cogent reason assigned. She\nfurther urges that the tags or labels on the garments are not a\nconclusive proof of the garments being of third country origin, in\nview of the craving in India for foreign-made goods. So far, the\ngoods of part-C of the inventory valued at Rs.1,64,500/- which are\nstated to ba undeclared miscellaneous third country origin goods, it\nis stated that before the Customs, Mr, &.C. Sharma had admitted to\nsome of the goods belonging to him. Further, Mr. Sharma in his\n\nreply dated 45.10.2008 pursuant to show-cause admitted that he\n\nie\n\n12 Appeal Nos.C/335-344 8% 376/09\n\nwas acquainted Shri Hari Kumar Thakuri, manager of M/s Pramila\nHandicrafts and on his transfer from Kathmandu to India, handed\nover five cartoons of personal effects to Shri Hari Kumar Thakuri for\ntransportation to Delhi, as they were in the business of export of\ngoods to India, as he had left Kathmandu on 42.02.2008 by air to\nreport for his duty at CISF Headquarters at New Delhi. That Shri\nThakuri had promised to transport his goods by gesture of goodwill\n\nand there was no consideration involved.\n\n6.3 The learned counsel also pointed out to certificates issued by\nGovernment of Nepal, Ministry of Industry and Commerce and\nsupplied trade and export promotion Centre certifying that the trade\nfair to be held in India in November, 2008, Smt. Kamla Shreshta of\nM/s Pramila Handicrafts is participating with their goods and also\nreferred to a certificate dated 16\"” November, 2008 issued by\nsecond Secretary, Embassy of the Nepal at New Delhi that they are\nparticipating alongwith the goods in the Indian Trade fair in\nNovember, 2008. Accordingly, urges that they are regular traders\nand manufacture of repute, and do not indulge into any\nmailpractices. The conclusion as regards garments is erroneous and\ndoes not stand in view of the overwhelming evidence jed by them.\nSo far, the goods as per Annexure-C, being water tube boiler and\nstone grinder, although these goods were handed by Mr. R.C.\nSharma but it appears, under the facts and circumstances he has\nchosen to disown the same for reasons best known to him. It is\nfurther urged that the appellant exporter have brought the goods\nthrough proper Land Customs Station and had there been any mala\n\nfide intentions, the goods could have been easily transported ta\n\nfv 7\n\n13 Appeal Nos.C/335-344 & 376/09\n\nIndia through the various porous border roads available.\nAccordingly, she prays for setting aside the orders of confiscation\nsave and except the goods like water tube boiler and/or stone\ngrinder. All the other goods and/or garments are not restricted\ngoods and can be imported into India on payment of proper\nCustoms duty. So far, the truck owners are concerned, it is stated\nthat it have nowhere come on record that they have deliberately\ndone any mischief and/or knowingly transported any contraband\ngoods and hence order of confiscation and redemption fine on them\nis totally unsustainable. She also prays that the penalties on various\npersons have been imposed in @ mechanical manner without there\n\nbeing any active role on their part in the alleged irregularities.\n\nThe learned AR for Revenue relies on the impugned order. He also\npoints out to the statement of Mr. R.C. Sharma wherein, he has\ndenied the ownership of the goods at Part-C of the inventory against\nthe claim of the appellant-exporter. Thus, it appears that the\nappellants have been trying to make various pleas by way of cover-\nup and/or afterthought and accordingly the appeals are fit to be\n\ndismissed\n\nHaving considered the rival contentions, I find that in view of the\nevidences discussed hereinabove and the findings of the learned\nCommissioner, that there is na conclusive finding as to the garments\nseized being of third country origin. So far, the goods being\nundeclared in the Bill of Entry being admittedly Nepalese Jackets\nvalue at Rs.33,000, the declared garments valued at Rs.32,74,945/-\n\nat the Annexure-Al to Panchnama, I hold that the confiscation is\n\n\n1 Appeal Nos.C/335-344 & 376/09\n\nbad and set aside the same along with redemption fine. So far the\nhandicrafts goods at Annexure-B to the inventory, admittediy there\nis no evidence of such goods being of third country origin and I find\nthat these are also the declared goods as per the Bill of Entry valued\nat RS.2,13,522/- and accordingly I set aside the confiscation. So far\nthe goods being water tube boiler and stone grinder at Annexure-C\nof the Panchnama, as no one has come forward to claim the same\nand were not declared along with other goods seized, etc., 1 uphold\nthe absolute confiscation in respect of the same. So far, the\nundeclared goods being personal effects valued at Rs,4700/-\nadmittedly belonging to R.C. Sharma is concerned, I set aside the\nconfiscation in view of the admission by the said Mr. R.C. Sharma\nbeing an employee of the Government of India and the facts stated\nby him have not been found to be untrue and further the goods\nwere of very small value and admittedly personal effects. So far, the\ngoods at Annexure-E to the Panchname being undeclared\nhandicrafts value at Rs.1,45,200 is concerned, I hold that these\ngoods are liable to confiscation, but the appellant-exporter, Smt.\nKarnla Shreshta of M/s Pramila Handicrafts is entitled to redemption,\non payment of redemption fine Rs. 25,000. So far, the two trucks\nare concerned, I find that there is no finding, save and except\npresumptions, that the owners of the said trucks and its staff being\ndrivers and cleaners were knowingly transporting any contraband\ngoods. In this view of the matter, I set aside the order of\nconfiscation of the two trucks as well as the redernption fine\nimposed, So far, the penaity imposed under Section 112 of the Act\n\nis concerned, considering the overall facts and circumstances and\n\n\n1S. Appeal Nos.C/335-344 & 376/09\n\nmy findings hereinabove, I reduce the penalty imposed on Smt.\nKamla Shreshta from Rs.25,000/- to Rs. 15,000/-, on Shri B.D. Pant\nfrom Rs.30,000 to Rs.5,000/-. Further reduce the penalty on Shri\nHari Kumar Thakuri from Rs.20,000/- to Rs.5000/-. So far the other\nappellants and/or parties are concerned, 1 set aside the penalties\n\nimposed on thern fully.\n\nThus, the appeals are allowed in part as indicated above. The\nappellants shall be entitled to consequential benefits in accordance\n\nwith law.\n\n(Dictated and Pronounced in the open Court} os\n\n- (ANIL CHOUDHARY)\nMEMBER (JUDICIAL)\n\nMARG, ALLAH:\n\nows\n\n\n"