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2021 (9) TMI 1401 - CESTAT MUMBAIAbsolute Confiscation of Cigarettes - levy of penalty - non-notified goods or not - valid import or not - It has been alleged by the department that the appellant could not produce the documents, evidencing legal import of the cigarettes found in the said premises - HELD THAT:- Both the authorities below in their respective orders have held that the goods in question are not notified under Section 123 ibid and accordingly, discharging the burden of proof regarding licit acquisition of cigarettes were entirely lies with the appellants and since, no credible evidences were produced, confirmation of the adjudged demands are in conformity with the statutory provisions. However, it is found that the Central Government vide Notification No. 204/84-Customs dated 20.07.1984 had specified ‘cigarettes’ as the notified goods for the purpose of sub-section (2) of Section 123 ibid. Since, the disputed goods are notified in the official gazette way back in 1994 and such goods have not been deleted from the list of notified goods through any notification, the scenario of entire exercise undertaken by the department for investigation and confirmation of the adjudged demands will be different inasmuch as under the said statutory provisions, the burden of proving that the goods are not smuggled goods shall be cast on the person from whose possession the same were seized. It is an admitted fact that the adjudication as well as the impugned orders have not considered the notification dated 20.07.1984. The matter should go back to the original authority for consideration of the notification dated 20.07.1984, proper application of the same to the facts of the present case and thereafter, to decide the cases afresh - Appeal allowed by way of remand.
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