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2024 (4) TMI 181 - AT - CustomsSmuggling - Absolute Confiscation - levy of penalties - 2060 numbers of green coloured refrigerant gas cylinders believed to be containing HCFC Gas - 5280 packets of Mosquito Repellents - 4800 pieces of Ladies garments - old and used TATA Trucks, which were allegedly used for transportation of the said goods - burden to prove - HELD THAT:- It is found that the mosquito repellents and ladies garments in question are of foreign origin or smuggled one has to be proved by the Revenue. However, the Revenue has failed to prove that the same are smuggled in nature. From the investigation conducted, it is not forthcoming as to how the Revenue has alleged that the impugned mosquito repellents and ladies garments are smuggled ones. Further, the above said items are not notified items under Section 123 of the Customs Act, 1962 - As the Revenue has failed to establish the ‘smuggled’ nature of the goods in question, the impugned mosquito repellents and ladies garments cannot be confiscated. HCFC gas confiscated from the godown of the appellant - it is the allegation of the Revenue that the same is a restricted item and was manufactured only in China - HELD THAT:- It is found that the goods in question are ‘restricted’ items, but not ‘prohibited’ items. In these circumstances, the onus lies on the Revenue to prove that the said goods were smuggled in nature, which the Revenue has failed to prove. Merely saying that the goods in question can only be manufactured in China cannot form the basis for absolute confiscation of the said goods recovered during the course of investigation. Therefore, we hold that the said HCFC gas cannot be confiscated. The order of confiscation of the goods in question is set aside - As the goods in question are not liable for confiscation, therefore, no penalty can be imposed on the appellants. The impugned order set aside - appeal allowed.
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