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2018 (8) TMI 1944 - AT - CustomsSmuggling - silver jewellary and ornaments of foreign origin - prohibited goods or not - onus to prove illegal import - confiscation of seized goods - HELD THAT:- The SCN was completely based on erroneous allegation but the adjudicating officer, despite of that confiscated the goods and imposed penalty either u/s 112(a) or 112(b) of the Customs Act. If an adjudicating officer is not certain as to which of the provision of penalty is applicable, he cannot be presumed to have examined the allegation and its gravity candidly in a quasi judicial manner as expected of. The appellant has stated the truth that he had purchased some old ornaments from Nepali citizens unaware of their citizenship then it could be only due to unawareness and only a meagre portion of the seized lot could be so, because in majority of the cases the customers are the local ladies of Jogbani. The confiscation of entire lot and imposition of [redemption fine of] ₹ 1,90,000/- with penalty of ₹ 30,000/- is not justified. There was no material to hold that the seized silver jewellary and ornaments were of foreign origin and there is nothing to show that they are smuggled into India - Onus is on the Department to prove illegal import. Mentioning the amount in a particular currency is not sufficient to establish illegal import from that country. The redemption fine and penalty imposed under Section 112(a)/112(b) of the Customs Act, 1962 is set aside - Appeal allowed - decided in favor of appellant.
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