2003 (7) TMI 413 - Commissioner - Customs

Application to Challenge Confiscation of Allegedly Smuggled Goods Denied - Lack of Evidence

IN RE: DIPAK DEB

IN RE: DIPAK DEB - 2003 (157) E.L.T. 237 (Commr. Appl.) Issues:Review of lower authority's order on confiscation of allegedly smuggled goods without conclusive proof of foreign origin or illicit acquisition.Analysis:The review application challenged the lower authority's order claiming the impugned goods were of smuggled nature and liable to confiscation. The grounds of appeal highlighted the lack of documentary evidence proving licit acquisition of the goods, emphasizing circumstantial evidence indicating foreign origin. However, scrutiny revealed the impugned goods did not fall under notified goods or Section 123 of the Customs Act, shifting the burden of proof to the Department to establish their smuggled nature conclusively. The law mandates the Department to discharge this burden beyond doubt, as confirmed by legal precedents. The circumstantial evidence presented failed to meet this standard for several reasons.Firstly, the foreign origin was not definitively proven, with emphasis placed on foreign marks without comprehensive examination or quantification. The show cause notice's presumption of smuggled goods did not suffice for conclusive proof, as the lower authority exceeded its scope without examination or corroborative evidence. The contention that the goods originated from across the border lacked sufficient tangible evidence, aligning with previous judgments requiring positive proof of smuggled character. Mere suspicion without concrete evidence is insufficient in establishing smuggling.Secondly, foreign markings alone do not conclusively prove goods as smuggled without corroborative evidence, especially when freely available in the market and procured by respondents from open market sources. The absence of importation documents does not automatically deem goods as smuggled, as supported by various Tribunal decisions. The review application failed to present irrefutable evidence establishing the goods' smuggled nature, rendering the invocation of Section 111 for confiscation legally unsustainable. Additionally, confiscating the vehicle under Section 115 was deemed unwarranted under prevailing legal provisions.Conclusively, the review application lacked merit, leading to the confirmation of the lower authority's order on appeal. The absence of conclusive proof regarding the foreign origin or illicit acquisition of goods rendered the confiscation and penalty imposition legally unsustainable, resulting in the rejection of the Review Application.