TaxTMI 
TaxTMI 
2007 (8) TMI 145
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....iscreet watch and intercepted two hand carts loaded with 20 bundles and 3 bundles of ball bearings of foreign origin respectively. There were no legitimate Customs duty paying documents or any other document available with the handcart puller. The handcart puller lead the officers to the godown from where the ball bearings were loaded on their hand carts. The said godown was inspected and found 99 similar bundles of ball bearing of foreign origin. The manager supervisor of the godown Shri Hiten M. Metha was asked for the legitimate Customs duty paying documents, however, he could not produce any documents and also he could not disclose the names of the owners of these ball bearing. As there were no documents evidencing payment of Customs du....
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....5 was issued proposing confiscation of the seized goods and imposition of penalty. On due adjudication the seized goods valued at Rs. 18,02,500/- recovered from two handcarts and from the godown were confiscated while imposing penalty of Rs. 3,00,000/- on Shri Shailesh Navin Chandra Shah, Rs. 2,00,000/- on Shri N.D. Hemani and Rs. 20,000/- on Shri H.M. Mehta. 6. The respondents challenged the said O-in-O in appeal before the ld. Commissioner of Customs (Appeals), Mumbai. The appeals were allowed vide the common impugned order-in-appeal, wherein it was held that admittedly the seized goods were not notified under Section 123 of the Act, and therefore the burden to establish that such ball bearings were smuggled into India is on the departme....
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....s by DRI, it cannot be seized and confiscated by the M&P wing of the Customs saying that condition of notifications were not followed. (vi) The original authority despite faithfully re-producing the ratio of several judgments in favour of the respondent, ignored the same without assigning any reasons, and proceeded to apply some judgments without establishing the facts of those cases which were out of context. 7. Aggrieved by the above said order, Revenue has filed these appeals. The Revenue has raised following contentions that the Commissioner (Appeals) has not appreciated the fact that the payment of octroi charges is mandatory for goods crossing and entering Mumbai Municipal limit through any of the check post and there was no such ev....
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....aterial, it is found there is no dispute on the fact that the Revenue has not produced even single positive evidence to show smuggled nature of the admittedly non-notified goods. On non-notified goods, the contention of the Revenue, that it is for the appellant to produce the duty discharge non-smuggled nature of the goods cannot be upheld, even on reading of Section 106 of the Evidence Act, in view of five member Bench decision in the case of Amba Lal v. Union of India - 1983 (13) E.L.T. 1321 (S.C.) = 1983 ECR 1935 D.S.C. wherein the Larger Bench of the Apex Court had held - 8. We cannot also accept the contention that by reason of the provision of Section 106 of the Evidence Act, the onus lies on the appellant to prove that he bought the....
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....he facts of the said case, which was pertaining to notified goods, and is not applicable in the facts of the instant case. The non-notified goods in the facts of this case have been correctly held to be not liable to confiscation. 9. In my opinion the statements of Shailesh N. Shah and Nilesh Hemani, regarding legal importation of the goods, cannot be brushed aside, when the department has failed to produce a shred of even presumptive material to prove illegal importation of the seized goods. Mere absence of the octroi receipt or MRP stickers cannot ipso facto lead to a conclusion that the goods are smuggled and non-duty paid. No merits are found in the present appeals filed on facts as well as law. 10. If the contentions made in the appe....
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.... have chosen not to make any inquiry regarding the truth in the statements of the respondent, as to whether the goods were part of the consignment released by DRI, and whether the description of the bearing number was incomplete for want of typing space. The revenue cannot first show laxity in the investigations and than seek to shift the burden on the notice to prove that the goods are not smuggled, especially when there is not even any 'presumptive evidence' produced to show illegal importation of the non-notified goods, and suggesting their non-duty paid nature. There is no evidence to show or even to presume as to when and which customs barrier was breached, to illegally import the seized goods. The confiscation was rightly set aside by....