TaxTMI 
TaxTMI 
2005 (1) TMI 282
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....5 of the Customs Act. 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 follo....
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....roduced copies of the judgment. Learned DR reiterated the departmental view. 2.We have carefully considered the submissions and perused the order. Lorry bearing No. KA 06 8378 was stopped near Mulbagal check post. The officers of DRI examined the 400 boxes of pesticides as declared in the documents available with one Shri Chand Pasha. They were other 40 bundles different from the pesticide boxes whose mention was not available in the transport documents. On examination it was found to contain cigarettes of Bangladeshi origin. Therefore they were seized on the plea that they are smuggled goods. The premises of M/s. Super Trax, No. 5, Unity Buildings, J.C. Road, Bangalore-2 and the godown located at M/s. Bright Electricals, KCD Sheds, Gubbi Mission Press Compound, Bangalore and from their godown cigarettes of Bangladeshi origin were also seized, besides goods of foreign origin like 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 a....
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....re seizure of notified goods under Section 123 of the Customs Act. It also notes that the burden is on the Department to show that they are smuggled goods. He relied on the following citations : CASE LAWS (1) BURDEN TO PROVE SMUGGLED NATURE OF GOODS ON THE Revenue WHEN THE GOODS ARE NOT NOTIFIED UNDER SECTION 123 OF CUSTOMS ACT, 1962. (a) NIPA Traders v. Commissioner of Customs - 2004 (165) E.L.T. 435 (Mumbai) Confiscation of goods - smuggled goods burden to prove - goods contained chemicals of foreign origin which were freely importable - department not discharged burden of proving that they were smuggled goods - Confiscation not sustainable -Section 111(d) and Section 123. (b) Commissioner of Customs v. Kiran Electronics - 2004 (170) E.L.T. 288 (Mumbai) Seizure - non-notified goods burden of proof on revenue - goods not being proved to be of foreign origin, confiscation not sustainable - 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 -....
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....- 2003 (161) E.L.T. 882 Smuggling - evidence - burden of proof - in absence of any evidence led by the department that copper scrap seized at New Delhi Railway Station is of foreign origin - confiscation under Section 111(d) not sustainable - initial burden to prove that goods are smuggled not having been discharged by the department - burden of proof cannot shift to the appellants. (j) Ashok Kumar Jain v. CCS - 2003 (159) E.L.T. 683 Confiscation of goods - smuggled goods - silk yarn non-notified items under Section 123 - Revenue is required to show that the same is of smuggled nature by production of evidence - confiscation set aside - Section 111. (k) HIM Electronics Traders v. Commissioner of Customs - 2003 (159) E.L.T. 761 (New Delhi) Smuggling - confiscation and penalty - non-notified goods - goods 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 - Sections 111(d) and 112(b). (l)....
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....GLED (a) Commissioner of Customs v. Mohoranjan Bainik - 2004 (165) E.L.T. 237 Confiscation of goods - smuggling - foreign origin - burden of proof - mere fact that goods were admitted to be of foreign origin does not ipso facto lead to inevitable conclusion that the same are of smuggled character - smuggled nature of goods to be proved by Revenue by producing affirmative and tangible evidence - assumption and presumption 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 Dev - 2003 (157) E.L.T. 237 Smuggled nature of goods - burden of p....
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.....P. Jain - 2000 (126) E.L.T. (page Nos. 19-24)180 Smuggling - Burden of proof - Section 123 of Customs Act, 1962, Presumption under Section 123 of Customs Act, 1962 not available to customs authorities when goods initially seized by the police. 4. MAHAZAR VALUE OF GOODS TO BE RETURNED (a) Bhogilal Mehta v. Union of India & Ors - 2004 (60) RLT page Nos. 27-286 (Cal) "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 1997 - value of goods as shown in seizure memo and not sale proceed 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. CC (Prev.), W.B. - 2004 (63) RLT 196 "Co....
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.... 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 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 ....