TaxTMI 
TaxTMI 
2013 (3) TMI 682
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. He passed orders for confiscation and also imposed penalty. The finding recorded by him reads inter alia as follows: " The main question to decide now is that whether Snehangshu Ghosh who purchased the Phensydyl Linctus on basis of his license issued for his shop Ghosh Medical Balurghat which is about 4 Km from Indo-Bangla border, was going to illegally export the same. Phensydyl Linctus is a drug, formulation containing codeine and is often misused as a psychotropic substance and abused by drug addicts in Bangladesh. Hence, there is great demand of this drug as it is cheaper than narcotic drugs. From the trend of rampant smuggling of this drug along Indo Bangla border, the Government vide its Notification No. 35/2008 Cus (NT) d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation through Indo-Bangla Border. Had the Customs Officers not intercepted the notified drug the same would have been illegally exported to Bangladesh. The department has amply proved by their investigation that Snehashis Ghosh who is not dealing with drugs formulations in any ligitimate manner under proper disposal that is mandatory for prescription drugs is purchasing bulk of notified drug and taking it to the Indo Bangla Border for illegal export to Bangladesh. The Hon'ble Tribunal in the case Kulbhusan Jain -Vs- CC, New Delhi 2003(154) ELT 169(Tri Delhi) has held that "initial burden was on the department to prove that the goods were of smuggled nature, cannot be accepted." As no doubt, the initial burden in a case of seizure o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ive character which complied with inference arising from the dubious conduct of the party, an inference could be drawn that seized articles were smuggled goods. Similarly, Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Apex Court in the case of Shah Guman Mal -Vs- The State of Andhra Pradesh, 1983(13) ELT 1631 (SC) 1980 AIR SC 793, while dealing with the question of burden of proof in a case of seizure of gold biscuits not in accordance with the Act and where presumption under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oods under Section 11 or under Section 123. Hence there was no reason why the goods should have been seized or confiscated under the Customs Act. I find that the appellant had produced the goods after observing all the legal formalities for supplying the goods to different retailers. The Department, on the other hand, could not adduce any evidence to the contrary. It is only on the basis of the assumption that had the goods not been intercepted the same would have been brought to Balurghat where there is a trend of smuggling across the border, and would have been smuggled out of India. This is far fetched." We are really surprised to see that a quasi judicial authority acted in the manner as did the Commissioner of Customs. The Additiona....