TMI Blog1999 (4) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... through Dalal on cash payment from the open market in Delhi where the Ball Bearings were freely sold and purchased; these goods did not attract the provisions of Section 123 of the Customs Act and accordingly the onus to prove that the Ball Bearings in question were smuggled into the country was on the Department which had not been discharged by the Department. He relied upon the decision in the case of Sethi Bearing Sales Corporation another v. C.C., New Delhi, Order Nos. A-75 76/87-NRB, dated 10-2-1987 in which it was held that since Bearings though of foreign origin are thus shown to be freely available in the market and in the absence of presumption as to the illegal import of such foreign bearings the Department should have produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal also held that since the appellant has failed to disclose the identity of the person from whom he has purchased the goods and since he has not produced any vouchers or bills for the purchase of the same, which facts are within his knowledge, a presumption can be drawn against him that these are smuggled goods and which was stated by him in the statement. The appellant in the present case did not know the names and address of the Dalals from whom he had purchased the ball bearings. He did not have any bill or document showing origin. The learned DR submitted that the burden of proof has shifted from the Department to the appellant. He relied upon the decision in Shah Guman Mal v. State of Andhra Pradesh, 1983 (13) E.L.T. 1631 (S.C.) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is not applicable to the facts of the present case. The Department has to estabiish that these judgments apply to the facts of the present case. He finally submitted that even if the ball bearings are held to be liable for confiscation, the appellant should have been given an option to redeem the same on payment of fine. He also relied upon the decision in Collector of Central Excise v. Decent Dyeing Co., 1990 (45) E.L.T. 201 (S.C.) in which it was held that the burden to prove is not on the buyer who purchased the goods but it is for the Department to prove non-duty paid nature of the goods. 5. We have considered the submissions of both the sides. One of the cardinal principle of prosecution is that the burden of proof is on the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, besides purchasing zips of Japanese make, despatched the same under a deliberate misdeclaration by a false invoice and not claimed the articles for a considerable length of time and gave fictitious names of the consignor firm. We find that the Tribunal in the case of Hindustan Bearing Corporation, 1990 (50) E.L.T. 91 held that the mere fact that the goods were foreign in origin is not sufficient to hold that they are smuggled goods. The circumstances that the consignee firm was fictitious and that the appellants could not name the broker, may at best create suspicion against the appellants. Suspicion however strong, cannot take the place of proof. The Tribunal held in that case that the Department had not discharged the initial bur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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