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2023 (3) TMI 1179 - AT - CustomsSmuggling - 7,000 Kgs of Black Pepper - foreign origin goods or not - burden to prove - confiscation alongwith penalty - HELD THAT:- Admittedly, the Consignment of 7,000 kgs of Black Pepper were being transported under proper GST Invoices, E-Way Bills and under proper Consignment Notes. The seizure also was affected, not in any border area, but after traveling for three to four days from the place of origin i.e. Mizoram. The Appellant has demonstrated that all the transactions were carried through proper banking channels. The Seizure Report has provided the two witnesses. From the signatures, it looks as if they were not well educated, there is no detail of their address. The Recorded Statements on their own fail to corroborate the Department’s case. When any statement is recorded under Section 108, it has been clarified by the High Court that when a person who has earlier given the statement before the Gazetted Officer should reiterate the same before the Adjudicating Authority in terms of Section 138B(1). Then only the Adjudicating Authority should admit the same as an evidence. After admitting as an evidence, he should allow these persons to be crossed-examined by the other party. In the present case, the statement itself was not recorded under Section 108. In the present case, as the statements have not been recorded in the terms of Section 108 nor the procedure specified under Section 138B(1) have been followed - The documentary evidence shown like GST Invoice, E-way Bill and Consignment Notes were available right at the time of Seizure and Department has not brought in any evidence to the effect that these are not legal documents. Once the Appellant is able to provide such documentary evidence, the burden of proving that the goods are of a foreign origin falls on the Department, which has not been done by them in the present case. The confiscation of 7000 kgs of Black Pepper is set aside along with penalties imposed on the Appellants - Appeal allowed.
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