2003 (1) TMI 577

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....9-1999 and found 27 bales of Raw Silk Yarn of foreign origin. The enquiries revealed that these bales of Raw Silk Yarn of foreign origin were transported by M/s. Patel Angadia Co. on behalf of M/s. Muchipara Consumers Co-operative Stores, 16, Sashi Bushan Dey Street, Kolkata and the documents i.e. Cash Memos of M/s. NCCF of India Ltd., Kolkata, having purchased these bales from Krishnagar Customs Division; Challan Nos. 13 and 14 both dated 8-9-1999 of M/s. Muchipara Consumers' Co-operative Stores Ltd. to self, Bangalore in respect of L.R. Nos. 163/10 and 164/7 and Challans of NCCF of India Ltd. for the sale of these goods to M/s. Muchipara Consumers' Co-operative Stores Ltd.; and Slip Nos. 163 and 164 all dated 8-9-99 of M/s. Patel Angadia ....

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....be assessed to duty at contemporaneous assessment; (ii) The goods shall be redeemed on payment of fine of Rs. 1,00,000/- (Rupees one lakh only); (iii) Penalty is reduced from Rs. 2 lakhs to Rs. 1 lakhs under Section 112 of the Customs Act. The order of the lower authority is modified to the above extent and disposed off accordingly." 3. The present appeal is filed by the above-captioned appellant company. From the Order-in-Appeal it is found that the Commissioner has come to his decision based on the following findings :- "The department has clearly established illegal importation of goods under seizure, are not those which were bought from the NCCF Customs godown. As per Challan No. 1/8175, dated 7-9-99, it is seen that the goods ....

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....re not relevant. Since the raw silk yarn is not notified under Section 1 and specified under Section 123 of the Customs Act, 1962, the burden of proof that the goods have been smuggled into the country is on the Department and the Department has not discharged the onus. When the appellant produced the documents for their legal acquisition, the onus is entirely on the Department to prove that the goods had been imported illegally." 4. After hearing both sides and considering the materials on record, it is found - (a)     the lower authorities have been led to an incorrect conclusion as regards the factual position on the delivery challan Nos. 163-164 and challan Nos. 13 and 14 both dated 8-9-99 of Muchipara Consume....

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....id lorry at Bangalore. However, the perusal of the transport documents show that there is a stamp on the Balasore Check Post in Orissa having been crossed, which have been ignored by the lower authorities. (b)     No enquiries have similarly been made from the driver of the concerned two trucks, which are the subject matters of these enquiries, to rule out the possibility of the transport of the goods from Calcutta to Bangalore. (c)      In view of the above factual inaccuracy in the observations of the lower authorities and the lacuna in the investigations, the Orders cannot be sustained. (d)     Raw Silk Yarn is not notified under Chapter IV-A or under Section 123 of the ....