AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (3) TMI 717
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....orm (Govt. of U.P.), - lorry Challan of M/s Manglam Parivahan Pvt. Ltd Kolkata, - bill of Entry having serial number 06530 dated 3-11-2010, - lorry Challan No. nil dated 14-11-2010 issued by M/s. Chandra Roadways, - tax invoice issued by M./s S. Krishna & co., - consignment note no. 300770 dt. 14.11.2010, - copy of form 50 - invoice no. Tec/EXP/106/10 dt. 13.10.2010 and - packing list dt. 13.10.10. 3. On comparison of goods in the truck with details in above documents, it was found that mark on bags were different from one mentioned on B/E showed 'STAR' brand, the bags carried mark L and the word 'GOLDEN'. After conducting inquiries and investigations, Revenue felt that these 175 bags of betel nuts totally valued at Rs. 11.90 lakhs have been smuggled into India through off route from Bangladesh....
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....d challan merely on request/insistence of the party and he has not arranged any transport nor has received any payment. It is also conspicuous that the said challan is without any serial number and not issued from any regular genuine challan book. b) the markings found on the seized bags were different from those which had been imported under impugned bill of entry. c) Commissioner (A) reliance on Boards circular dated 14.12.65 is baseless as a plain reading of the circular suggests that in case of goods which are not covered under Section 123 of Customs Act, 1962, the burden to prove that goods are smuggled is on the customs authorities. But when goods are recovered from a person who is not an importer, it is supposed that all documents of legal importation of said goods to be in possession of that person and thats why the burden to prove the goods to be smuggled one, is on the department. In the present case, the importer has failed to correlate the goods with his import documents. The documents submitted by him were found to be fabricated and the averments have been found to be after thought. d) several circumstantial evidences coupled with dubious conduct of the part....
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....e National Litigation Policy as duty involved in these appeals was less than Rs. 5 lakhs (Rupees Five lakhs only). Actually there was no duty involved in these appeals as appeals related to imposition of penalty only. 10. Heard both sides. 11. I have gone through the submissions made by both sides and also have perused the records. It is observed that the Revenue have come up in appeal before Tribunal against Commissioner (Appeals)s order wherein he has dropped penalties concluding that revenue has failed to establish that seized goods were smuggled one Commissioner (Appeals) has relied upon Honble Tribunals judgment in case of Sultan Dharani-2007 (220) ELT 820 (Tri.-Mum). He also referred to Honble Bomaby High Court judgment wherein it was held that burden to establish lies on the department to prove that seized goods were smuggled one. It was held that department has not been able to produce any material tangible evidence in this regard. 12. On the other hand, department has not accepted finding of the Commissioner (Appeals) and in their grounds of appeal has pointed out that seized bags of Betel Nuts were different from those which had been imported under bill of en....
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....n smuggled through route which was not notified under the provision of law. Commissioner (Appeals) is right in holding that Revenue was failed to conclusively proved that Betel Nuts have been smuggled into India from off route from Bangladesh. Even though I agree with Revenues contention that certain irregularities in the nature of documents and statements from Chandra Roadways and Mangalam Parivahan Pvt. Ltd. has led to inconsistencies. Even supplier of stitching machines has not been found in his declared place of business and there was statement of driver in favour of Revenue. But I agree with the findings that merely on the basis of these indications, it could not be conclusively proved that seized goods were smuggled from Bangladesh Border. 16. Otherwise, in view of the fact that the betel nuts are non-notified items, the onus to prove that the goods are smuggled lies heavily upon the Revenue and which required to be discharged by production of positive evidences. Tribunal in the case of Sultan Dharani reported as 2007 (220) E.L.T. 820 (Tri.) (relied upon by Commissioner (Appeals) has held that Revenue cannot first show laxity in investigation and then seek to shift the bu....