2011 (9) TMI 297

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....ved. 2. As per facts on record, the appellant is a shopkeeper, selling various types of carpets. Their shop was put to search on 4.3.09, as a result of which synthetic printed velvet fabrics was recovered. Under a reasonable belief that the goods recovered were of foreign origin and smuggled, the same were detained by the officers. 3. In his on the spot submission, dated 4.3.09 Shri Suresh Kumar Gupta, father of Shri Anubhav Gupta, proprietor of M/s. A.G. International stated that the said recovered printed carpet fabrics had been purchased by them from M/s. Oriental Textile Processing Co. (P) Ltd., Ludhiana against invoice No. 3735 dated 9.2.09.  During further course of communication, statement of  Shri Sachin Katyal, Gene....

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..... After hearing both sides, we find that the fabrics in question stands absolutely confiscated  by the lower authorities on the ground that the same are of foreign origin and are smuggled. Learned SDR appearing  before us submits that appellants are selling the said product as of Chinese origin to their customers. They also refused to sign the panchnama and M/s. Oriental Textile Processing  Pvt. Ltd. has categorically stated that they are not  manufacturing velvet fabrics. All these facts shows that fabrics was of foreign origin and are smuggled. As against the above statement, learned Advocate appearing for the appellants submits that the goods are not velvet  fabrics as is clear from tests reports. They are 100% p....

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.... not manufacturing velvet fabrics, Revenue has not confronted M/s. Oriental Textile Processing Co. P. Ltd. with their  invoices, produced at the time of seizure itself.   10. The onus to  prove that the goods in question are of smuggled goods, lies heavily on the revenue as though the fabrics made wholly or mainly of synthetic yarn and covered by Section 123 of Customs Act, 123 of Customs Act, 1962, in absence of any foreign marking on the goods or any other evidence indicating that the goods of smuggled origin, there is no basis for exercising reasonable belief that the same are goods smuggled and therefore the provisions of Section 123 can not be invoked. The said onus is required to be discharged by adducing positi....