TMI Blog1999 (8) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... be containing cotton yarn and were booked under Air Consignment Note/Airways Bill dated 21-6-1996 on 22-6-1996. Shri Partha Ghosh, owner of M/s. Continental Express submitted the documents and claimed the release of the goods and also disclosed that the owner of the goods was Shri R.K. Jain of M/s. R.B. Exim (Pvt.) Ltd. The goods were sent by him from his factory in Murshidabad. The goods were opened and examined in presence of the representatives of M/s. Reliable Services, Calcutta and of M/s. Continental Express and the representative of M/s. Modi Luft and two independent witnesses. Search of the said nine packages resulted in recovery of 450 Kgs. of Chinese Silk Yarn. As the goods were misdeclared under the Air Consignment Note and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bhubaneswar. In his subsequent statement recorded on 24-6-1996, he, however, submitted that the consignment was booked as cotton as per instructions of Shri Partha Ghosh who in turn had advised him on instruction from the owner of the goods, Shri R.K. Jain. Shri Partha Ghosh, personnel of M/s. Continental Express in his statement recorded on 22-6-1996, submitted that he was not aware of the fact that whether the threads were of Indian origin or were of foreign and whether the same were silk yarn or cotton yarn. He also deposed - Regarding declaration of this consignment, I like to state that we do not make declaration of goods other than electronics in a very correct way . Here the goods were declared as cotton as no courier company gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were received by these co-operative societies from the Customs, were also produced before me and it was pointed out that the bills issued by the Customs also do not carry any specifications of the goods and simply write Chinese Silk Yarns F/O. As such, submitted learned Consultant, that the authorities were not justified in rejecting the documents produced by the appellants on such flimsy grounds. He also argued that the silk yarn is neither notified under Chapter IV-A of the Customs Act, 1962 nor under Section 123 of the Customs Act, 1962. As such, the burden to show that the goods in question were smuggled illegally into India, lies very heavily upon the Department, which the Department has failed to discharge. On the contrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record to show that the yarn was disclosed as cotton yarn at the instructions of the appellants. On the contrary, he submitted that the evidence in the shape of statement of the representative of the courier agency had come on record, which shows that the goods were declared as cotton at the hands of the courier agency inasmuch as not much importance is being given to the declaration of these agencies in domestic flights. 5. I have considered the submissions of both sides. I first note that the goods are non-notified in terms of Chapter IV-A or under Section 123 of the Customs Act, 1962. As such in the ordinary course, the burden is upon the Department to prove that the goods are smuggled items. However, in the instant case, I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be upheld. The Department s contention that the goods were misdeclared as cotton and as such the said misdeclaration is a pointer towards the guilty mind of the appellants, cannot be accepted inasmuch as the representatives of the various courier agencies involved have, in their statements, clearly deposed that the said declaration was made by them firstly because much importance is not being given to the declaration except in the case of electronics and secondly, the goods were declared as cotton as because sometimes M/s. Modi Luft creates fuss for carriage of thread other than cotton and also for saving octroi duty. As such, the declaration of the goods cannot be made the basis for holding the yarn in question as illegally smuggled in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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