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2013 (9) TMI 508 - CESTAT BANGALOREMisdeclaration of goods - import of BIO-ORGANIC FERTILIZER LIQUID - Confiscation of goods u/s 111(d) and 111(m) – penalty u/s 112(a) and 114AA - Held that:- Without ascertaining the correct identity of the goods one cannot hold it to be prohibited or to have been misdeclared - the goods in question cannot be confiscated in terms of Section 111(d) or 111(m) - the importer cannot be held to have rendered the goods liable to confiscation - the test report of IICT indicates that they were required to find out whether any pesticide was contained in the given sample - the analysis result was negative – the absence of pesticides has not been shown to constitute a singular ground for holding the imported goods to be prohibited in terms of Section 111(d) or to have been misdeclared in terms of Section 111(m). Burden to prove - The burden shifted to the Customs authorities to prove that the imported item was not bio-organic fertilizer but an item prohibited for importation under the Customs Act or any other law - the report of RCOF showing absence of bio-organic fertilizer in the given sample was not a reliable evidence - even the lower appellate authority held that the burden of proof was on the department to classify the goods and this burden was not discharged – order set aside – decided in favour of assessee.
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