TMI Blog2001 (2) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... for M/s. Mohinder Hospital Medical Research Centre (MHMRC), S/Shri Mohinder Singh and Shri Surjeet Singh, and Shri. K.G. Seth, learned Advocates for M/s. Life Line System Pvt. Ltd. and Shri Suresh Kumar, and Dr. Ravinder Babu, learned DR, for Revenue. The impugned goods are as under :- 1. Cardiac Monitor Part No. 210-251-070 Sr. No. 11-0181, Mennen Medical USA, 2. Cardiac Monitor Unit, Mennen Medical Israel, Model B1291, Part No. 241-010-020, 3. Central Unit Cardiac Monitor, Mennen Medical U.S.A., Sl. No. H1477 alongwith Operation Board Vista, Model 1080, Sl. No. H1770, Part No. 210-010-010. 4. Ameda Servo Proportional Control Switzerland Type M.S.P., Sl. No. 848026, 5. Ameda Incubator, Switzerland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unit shipped by the supplier was Model 1080; that there is no difference in any manner in regard to the functioning and/or otherwise of the said equipment; that both Models are freely importable; that duty was paid and goods were cleared in lawful manner for home consumption; that, further, the foreign supplier in Telex dated 25-9-1992 clarified that the purpose and the value of the equipment are the same; that the Appellants cannot be condemned for the mere fact that the model number of the unit imported slightly differs from the actual model number of the unit; that no inference or presumption can be drawn of guilty knowledge and as such no penalty is imposable on the Appellants; that in any case gravity of offence, if any, is very mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they had a service contract with MHMRC in regard to servicing of certain equipment supplied by them; that seized invoices were merely proforma invoices and not commercial invoices; that those invoices were for repairs only and accompanied with service contract; that there is no one who says that these goods were imported by SSL which goes to show that it was only a service contract; that provisions of Section 111(j) are applicable only to goods brought from a place outside India whereas in the present matter the goods were seized from the premises of the hospital situated in India. He relied upon the decision in Liyakat Shah v. C.C.E., Indore-II, 2000 (120) E.L.T. 556 (T) wherein it was held that penalty is not imposable when show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellants No. 1 to 3 are liable to penalty under Section 112 of the Customs Act; that goods at Sl. No. 7 was admittedly purchased at Bombay; that neither any valid explanation nor document for its legal import is forthcoming which makes the same liable for confiscation and imposition of penalty. Finally Dr. Babu, learned DR, submitted that no proof for authorised import of items at Sl. Nos. 4 5 has been adduced either by MHMRC or LLS; M/s. LLS has controverted the submission of MHMRC that they had purchased the same from LLS; that circumstances indicate the unauthorised import of these items. 6. We have considered the submissions of all the sides. The learned Advocate for Appellants No. 1 to 3 have categorically mentioned that Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere imported in violation of the provisions of Customs Act or any other Act in force. There is no evidence on record to show that these goods (Sl. Nos. 4, 5 and 7) were not imported in lawful manner. These goods have not been notified under Section 123 of the Customs Act under which the burden of proof that the goods are not smuggled goods rests on the person from whose possession the goods are seized. In absence of clear evidence that these goods were removed from a customs area without the permission of the proper officer or contrary to the terms of permission, the same cannot be held liable to be confiscated under Section 111(j) of the Customs Act. The Supreme Court in C.C.E. v. Decent Dyeing Co., 1990 (45) E.L.T. 201 (S.C.) held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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