TaxTMI 
TaxTMI 
2004 (12) TMI 193
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....ket in front of the Commissioner of Customs Office, Madras, where there are shops and they are sold openly. It is their contention that the goods are not smuggled ones and are sold from the shops, which are located near the Customs House, Madras, itself. These goods were brought by them to Bangalore in a Maruti Van and the Van was seized by the police and these goods and the persons were made over to the custom officials who recorded the statements and proceeded against them in terms of the Customs Act for absolute confiscation and for imposition of penalty. The Commissioner, in the impugned order, has come to the conclusion that the goods are smuggled goods; that the appellants did not produce any documents to prove their licit possession of the goods. He has also noted that the appellants did not possess commercial/sale documents purchase receipts, sales tax receipts or atleast some correspondence between the supplier and the purchaser to produce their licit possession of their goods. Therefore, in the absence of these documents, he has held that the burden to prove the same to be not of smuggled nature has shifted to the appellants and they have not discharged the same. 2.We ....
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....ds not being proved to be of foreign origin, confiscation not sustainable - Sections 111(d) and 123 of Customs Act. (c) Aslam Noor Mohammed v. CCs - 2004 (169) E.L.T. 243 (Mumbai) Confiscation - smuggling - burden of proof - foreign origin goods - departmental authorities to prove in a positive manner that the goods are smuggled and not appellant to prove negative fact that goods are not smuggled - confiscation not warranted - Section 111(d). (d) V. Muniyandi v. CCs, Chennai - 2004 (167) E.L.T. 215 (Chennai) Confiscation of goods - foreign marking - merely because goods are in trade quantities and there are foreign markings - that by itself cannot lead to an inference that goods have been smuggled - goods involved being non-notified goods burden to prove that they are smuggled lies with the department which is not discharged - confiscation, penalty set aside. Section 111, 112 and 123. (e) Commissioner of Customs v. J.T. Parekh - 2004 (167) E.L.T. 77 (Mumbai) Smuggled goods - burden of proof - goods of foreign origin found in shop premises a....
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.... of foreign origin being freely tradable and available in open market and not being under section 123 - not to be presumed as smuggled goods merely because purchase of entire could not be accounted for - confiscation and penalty not sustainable - section 111(d) and 112(b). (l) Sadbhavana v. Commissioner of Customs - 2003 (158) E.L.T. 652 New Delhi Smuggled goods - confiscation and penalty - failure to produce document regarding legal import/possession of foreign origin goods - burden to prove smuggled character lies on the department - goods not notified goods and available in the open market - mere non-production of the bill by the appellant - a small concern - not leading to an inference that they had smuggled those goods - department having failed to discharge the initial burden - seizure of goods and penalty not sustainable - Section 111, 112 and 123. (m) Commissioner of Customs v. National Radio Products - 2003 (156) E.L.T. 908 Smuggling - burden of proof lies with department unless goods notified under section 123 - non-production of documentary evidence showing legal importation d....
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....that goods are seized from the area which is a smuggling zone cannot be the basis for confiscation - Section 111 (b) Godari Rai v. Commissioner of Customs - 2003 (160) E.L.T. 1027 Smuggling - onus to prove - appearance of foreign markings of different countries of origin on few pieces of metal scrap not conclusive to prove of entire scrap being foreign origin - no evidence placed by Revenue to show that goods are smuggled - confiscation not justified - 111 (d) and 123 of Customs Act. Confiscation of conveyance also not proper section 115 (ii) (c) Dipak Deb - 2003 (157) E.L.T. 237 Smuggled nature of goods - burden of proof - mere non-production of documents or acquisition of goods cannot lead to the conclusion that the goods are smuggled - foreign mark on paper/wrapper cannot be relied upon - penalty not imposable - confiscation of vehicle not warranted - Section 111, 112 and 115 (d) Laxmi Narayana Somani v. Commissioner of Customs - 2003 (156) E.L.T. 131 Smuggling - foreign origin goods - markings - mere trade opinion not sufficient to e....
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....p; Bhogilal Mehta v Union of India &. Others - 2004 (164) E.L.T. 239 (Cal.) = 2004 (60) RLT 6 (Cal.) (page nos. 27 - 28) "Release of seized goods - goods seized under Section 110 of Customs Act, 1962 - were ordered to be released by adjudicating authority in 1992 the same were sold by Customs in 1997 - value of goods as shown in seizure memo and not sale proceeds to be paid to petitioner." (b) Shilp Impex v. Union of India - 2001 (128) E.L.T. 54 "Goods sold by department without notice at much lesser price than the one declared by the petitioner and much less than the value of the goods adjudicated by the authorities - Petitioner is entitled to receive the value of the goods as fixed by the Department - Section 111 of Customs Act, 1962." (c) Sufal Dutta v. C.C., (Prev.), W.B - 2004 (167) E.L.T. 283 (Tri.) = 2004 (63) RLT 196 "Consequential relief - the confiscated goods auctioned before the appeal has been allowed by the Tribunal with consequential relief - appellant entitled to full value of confiscated goods as declared and accepted by the department at the t....
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....arned JDR fairly concedes that the goods in question were all non-notified ones. The learned Counsel submitted that they are eligible to receive Mahazar value of the goods in the Department and prays for a direction to the Department to grant the Mahazar value to them on their succeeding in the appeal. In this regard also, he relies on the judgments already noted supra. The learned Counsel also pointed out that Section 123 of the Customs Act is not applicable in case the goods are seized by Police and in this regard also he relied on the judgment cited by him. He submitted that mere marking of foreign origin does not by itself render the goods to be smuggled ones. In this regard, he also relied on the judgments cited in the list. 5.On a careful consideration of the submissions, we find from the facts of the case that the goods were seized in Bangalore by the Police. And the appellants had handed over the goods under seizure to the Customs Department for further investigation. In terms of the judgments relied by the Counsel which are noted supra, Section 123 of the Customs Act is inapplicable when the Police have seized the goods and handed over the same to the Customs Department....