2000 (10) TMI 603

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....e intelligence gathered that illicitly imported goods of foreign origin are stored, openly displaced and are being offered for sale therein and conducted operation and seized the goods of foreign origin referred to in the mahazar valued at Rs 91,215/-. The matter was enquired into and thereafter show cause notice was issued to the appellant, viz. Dega Janardhana Reddy, who was the proprietor of the shop. The matter was heard and thereafter adjudicated by the Dy. Commissioner, Central Excise & Customs, Guntur who ordered confiscation of the seized goods valued at Rs 91,215/- under Section 111(d) of the Customs Act, l962 and gave an option to redeem the same on payment of fine of Rs 15,000/- and on payment of duty liable to be paid on the sei....

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....;  As regards Baggage receipts produced for proving the acquisition of the goods on payment of duty and brought through Green Channel, the adjudicating authority chose to compare the value of the goods as made out in the seizure documents and concluded that there was no nexus and the goods are smuggled and liable for confiscation. The department had to prove the smuggled nature of the goods before order of confiscation which has not been done so. (d)     Commissioner (Appeals) has approved order of the lower authority. Since the department did not prove the smuggled nature of the goods, the goods were permitted to be imported under the Baggage Regulations and the genuineness of the baggage receipts produced by th....

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..... Sudarsan, learned DR for the department and after considering the submissions we find that : (a)     out of the goods under seizure only 62 pieces of calculators and 45 pieces of watches are covered under Section 123 of the Customs Act, 1962. The remaining goods viz. Radio Cassette Recorder, Cigarettes, Alarm Clock etc. are not covered by Section 123 of the Customs Act. (b)     It is a fact that baggage receipt for the item were issued at Chennai Air Customs along with baggage receipt in the name of one Shanmugam which has been produced to cover 90 pieces of the calculators in question, which has been rejected on the only ground that the values shown in the duty paying documents are at varianc....

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....to reject the claim of the appellant that the said goods are not smuggled into the country. These are non-notified goods. The appellant also relied upon the decision in the case of Jatin Mehta v. CC, reported in 2000 (120) E.L.T. 108 (Tribunal) wherein it has been held that for the purpose of burden of proof, fact of the goods being purchased and being sold to anonymous persons and also sold without any bills raises a question about the legal nature of the goods and that alone is not enough to establish preponderance of evidence that the goods had been smuggled into the country and the burden should be held to be not discharged by the department as far as goods not covered by Section 123 are concerned. Therefore, we find no reason to sustai....

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....t explained only that this item was purchased from a market known as Burma Bazar in Chennai where goods of foreign origin are brought and sold in open, according to him. This explanation is not sufficient to discharge the burden cast on him under Section 123 on the person from whose possession the goods have been seized. (g)     We find that lower authority's order has very clearly indicated that the seizure was made after specific intelligence was gathered regarding sale, display of the foreign marked items at the shop. Therefore when goods are notified under Section 123, the onus to prove that these are not smuggled into the country is on the person concerned i.e. the present appellant and since he has not discharge....