TaxTMI 
TaxTMI 
2005 (1) TMI 282
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....The said Chand Pasha is not in appeal before us. There is a penalty of Rs. 8 lakhs on Shri Syed Ibrahim and Rs. 1.50 lakhs on Shri R.D Raja in terms of Section 112(b) of the Customs Act. These two persons are in appeal. There are further penalties on other parties who are not in appeal. The simple contention of the appellants is that the goods are not smuggled ones and they are non-specified goods which have been seized in the town and therefore, the question of its confiscation does not arise, besides imposing penalty. It is their contention that mere fact of foreign origin does not by itself amount to holding that the goods are smuggled ones. In this regard he relied on the following judgments : (1) Shew Sunder Shukla [2001 (131) E.L.T. 465 (T.-Kol.)] (2) Rajesh Kumar [2001 (134) E.L.T. 148 (T.-Kol.)] (3) Tayyub Juner Khatri [2002 (139) E.L.T. 433 (T.-Kol.)] and contended that since the goods are non-notified goods, therefore the burden of proving of non-notified goods to be seized is on the department as held in the following judgments : (1) Dasu Kashinath Bergal [2001 (132) E.L.T. 380 (T)] (2) Anil Gupta [2001 (135) E.L.T. 358] (3) Rajesh Kumar [2001 (134) E.L.T. 148] (....
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....ike food stuffs chocolates, electrical items. The statements of various persons were recorded and the case was booked for confiscation of these items as having been smuggled ones and after conclusion of the proceedings, these same have been confiscated and penalties have been levied. The contention of the appellants is that the goods are not specified and they are freely available in open market, that in terms of large number of judgments, the burden is on the revenue to show that the goods are smuggled ones and as the same has not been discharged, therefore in terms of the judgment in the case of Naveed Ahmed Khan and others by Final Order Nos. 1934 to 1936/2004, dated 7-12-2004 [2005 (182) E.L.T. 494 (Tri.-Bang.)], the penalties are required to be set aside and revenue should be directed to reimburse the value of the goods as noted in the mahazar. 3.We have considered the submissions and find that this very plea was raised in case of town seizure in the case of Naveed Ahmed Khan and the Tribunal by Final Order Nos. 1934 to 1936 dated 7-12-2004 [2005 (182) E.L.T. 494 (Tri.-Bang.)] has allowed the appeals and directed the revenue to reimburse the value of the goods as in the mahaz....
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....ustainable - Section 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. Muniandi 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 - Sections 111, 112 and 123. (e) Commissioner of Customs v. J.T. Parekh - 2004 (167) E.L.T. 77 (Mum.) Smuggled goods - burden of proof - goods of foreign origin found in shop premises and not notified - merely because goods are of foreign origin and bills not available not lead to a belief that goods are smuggled - smuggled nature of goods not proved by department - confiscation not su....
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....uggled 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 - Sections 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 does not conclude to smuggled nature - purchase from unknown person may raise suspicions but not true of smuggled nature - confiscation not sustainable. (n) Bodilal Mehta v. Commissioner of Customs - 2003 (154) E.L.T. 183 Smuggled goods - evidence - statement changing stand - appellant having failed to locate the broker from whom he has purchased the belts of foreign origin taken plea that goods being non-notified - onus is upon revenue that goods are smuggled - nothing on record to show that goods are smuggled - confiscation, fine, penalty set aside - Sections 111, 112 and 125. (o) ....
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....oreign origin especially when such bags available in plenty in market - for want of evidence confiscation penalty set aside - Sections 111, 112 and 123. (e) Jitender Pawar v. Commissioner of Customs - 2003 (156) E.L.T. 622 Smuggled nature of goods - evidence - mere foreign marking not sufficient since at that time gold could be freely importable and was available in the market for sale evidence to prove smuggled nature not found - Sections 111, 112 and 123. (f) Sayed Saleem - 2003 (151) E.L.T. 119 (g) Commissioner of Customs v. M. Banikpage nos. 13 & 14 - 2004 (165) E.L.T. 237 (h) Satyanarayan Koti page nos.- 2003 (53) RLT 190 .... (i) Rakesh Gulati page nos.- 2003 (54) RLT 531 ..., 8, 10 (j) Him Electronics page nos.- 2003 (56) RLT 889 15, 17 3. SEIZURE BY POLICE (a) Jitender Pawar v. Commissioner of Customs - 2003 (156) E.L.T. 622 (Delhi) Page Nos. 25 & 26. Smuggled nature of goods - burden of proof - goods initially seized by police - presumption regarding smuggled nature of goods not invocable - initial burden on department to prove smuggled nature. (b) Rajkamal Departmental Stores - 2002 (page Nos. 18)(51) RLT 756 Burden of proof - Section 123 of Customs Act 1962 ....
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....veyance not justified - Section 115(2)." (c) Prince Gutuka v. CCE - 2001 (135) E.L.T. 109 (d) Jaykrishna Bala v. Commissioner of Central Excise - 2004 (170) E.L.T. 574 Confiscation of conveyance and imposition of penalty not warranted. (e) Harindar Pal Singh v. CC - 2003 (160) E.L.T. 358 3. The learned JDR submitted that the burden to prove had not shifted on the department and they are all smuggled goods. He pointed out to the judgment of the Delhi Bench in Kulbhushan Jain v. CC, New Delhi - 2003 (154) E.L.T. 169 (Tri.-Del.) and that of CC, Ahmedabad v. R.P. Gangwal - 2004 (163) E.L.T. 391(Tri.-Mumbai); Ballav Daga v. CC - 1991 (52) E.L.T. 251 (Tribunal). The learned Counsel distinguished the judgments and pointed out that the goods in these cases were of foreign marked smuggled ones and had been seized at the time of smuggling and they were all notified goods. 4.The learned 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....