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2016 (11) TMI 760 - AT - CustomsConfiscation of seized goods - 103 bags of zinc residue and 94 bags of iron scrap - non-production of documents for production of goods - Held that: - The expression any goods and smuggled goods in Section 123 (1) of the Customs Act, 1962, would indicate that it is required to be established that the seized goods are smuggled goods. In the present case, I do not find any material that the seized goods are smuggled goods except that the packing material are bearing the name of the factories of Nepal. Even, the Chemical Examiner's report would not indicate that the seized goods are smuggled goods. The findings of the lower authorities that the seized goods are smuggled goods merely on the basis of the packing material, cannot be accepted. The appellant categorically stated that he had purchased the material locally and the goods are freely available in the open market which was not disputed by the Revenue. The scrap being non-notified goods, smuggled nature of goods, are to be proved by the Revenue by producing affirmative and tangible evidence. The lower authorities proceeded on the basis of assumption and presumption that the goods were seized from Raxaul, which is near to Nepal cannot be basis for the confiscation of the goods. I find that the Tribunal in the case of Commr. of Customs (Prev.), Kolkata Vs. Manoranjan Banik [2003 (11) TMI 428 - CESTAT, kolkata] on an identical situation rejected the appeal filed by the Revenue. In that case, the seized goods were wrapped by foreign papers. The Hon’ble Supreme Court in the case of Collector of C.Ex., Vs. Decent Dyeing Company [1989 (12) TMI 164 - SUPREME COURT OF INDIA] in the context of Central Excise Law observed that burden to prove duty paid character of the goods is not on the purchaser or job worker but Department to prove non-payment of duty so as to deny concessional duty. Similarly, in the present case, the appellant purchased the non-notified goods locally, but Department to prove smuggled goods. Confiscation of the seized goods and imposition of penalty on the appellant cannot be sustained - appeal allowed.
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