2005 (5) TMI 469

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....issued and on adjudication, motor cycle was confiscated but allowed to be redeemed on payment of redemption fine and penalty was also imposed on all the noticees. Aggrieved against the aforesaid order, present appeal is filed by the appellant.  3.At the time of personal hearing, the Counsel of the appellant stated that it was due to improper or faulty checking at the time of import of the motor cycle chassis no. wrongly mentioned in the bill of entry could not be detected by the Customs otherwise motor cycle was legally imported. After proper assessment it cannot be reopened after 6 years from the date of import. Further, they argued that the Deptt. has not produced even a single piece of evidence that the motor cycle was imported w....

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.... the motor cycle, then the presumption should go in favour of the appellant that the motor cycle was imported under the aforesaid Bill of Entry. Just because the prefix 'HMX' to chassis no. was not mentioned in the B.E. Deptt. cannot presume other way round, that it was not the same motor cycle. There is no doubt about the fact that there cannot be two motor cycle with the same engine no. of the same make, therefore, when engine no. and other details tallies with the seized motor cycle, then I tend to agree with the arguments of the appellant that mistake occurred at the time of physical examination at the point of import, when prefix HMX to chassis no. was not shown in the bill of entry. It may also be possible that the HMX which refers to....

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.... to establish that motor cycle is of foreign origin merely because the motor cycle bears a foreign mark, it was presumed to be a foreign made and further on this fact alone it was held to be illegally imported into India without payment of duty. When the law says that burden is on the Deptt. then the Deptt. is duty bound to discharge the onus placed on them and they cannot shift this burden to the importer and for non- production of such evidence, goods cannot be confiscated. Further, as per instruction No. 394/184/92-Cus./AS, dated 23-2-93 Board classified that in case of non-notified goods, burden is on the Deptt. to produce evidence that goods were illegally imported and not the person from whose possession such goods are seized and such....