2005 (10) TMI 460 - AT - Customs

Appellate Tribunal rules in favor of appellant, waives pre-deposit & stay of recovery

The Appellate Tribunal CESTAT, Chennai ruled in favor of the appellant, waiving pre-deposit and stay of recovery for a penalty imposed on them. The lower ... Burden of proof - confiscation with option for redemption - personal penalty - waiver of pre-deposit - stay of recovery - notified under Section 123 of the Customs Act - prima facie caseNotified under Section 123 of the Customs Act - burden of proof - confiscation with option for redemption - personal penalty - Whether pre-deposit could be waived and recovery of the penalty stayed in view of the departmental burden to prove illicit possession when the goods seized were not notified under Section 123 of the Customs Act and the lower authorities shifted the evidential burden to the appellant. - HELD THAT: - The Tribunal found that the goods seized (electronic items) were not notified under Section 123 of the Customs Act and, accordingly, it was the Department's burden to prove that the appellant had illicitly acquired possession of the goods. The lower authorities proceeded on a legally incorrect premise by placing onus on the appellant to demonstrate lawful importation. Given that misplacement of burden and the circumstances, the appellant established a strong prima facie case against the personal penalty imposed and against the confiscation order's treatment insofar as it affected burden allocation. In view of that prima facie showing and the legal error in the lower orders, the Tribunal allowed the application for waiver of pre-deposit and granted stay of recovery of the penalty.Waiver of pre-deposit and stay of recovery of the personal penalty granted; appellant's prima facie case and departmental burden to prove illicit possession noted, and lower authorities rebuked for wrongly shifting burden.Final Conclusion: The Tribunal granted the appellant's prayer for waiver of pre-deposit and stayed recovery of the penalty on the basis that the goods were not notified under Section 123, the Department bore the burden of proving illicit possession, the lower authorities had erred in shifting that burden, and a strong prima facie case was made out by the appellant. The Appellate Tribunal CESTAT, Chennai ruled in favor of the appellant, waiving pre-deposit and stay of recovery for a penalty imposed on them. The lower authorities wrongly placed the burden on the appellant to prove legal importation of goods, which were not notified under Section 123 of the Customs Act. The appellant demonstrated a strong prima facie case against the penalty.