TMI Blog2002 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of ball bearing has also been confiscated with an option to the owner to redeem the same on payment of redemption fine of Rs. 50,000/-. In addition, a personal penalty of Rs. 1,00,000/- has been imposed on Shri Harshad Shah and penalty of Rs. 20,000/- each has been imposed upon Shri S.P. Chitlangia and Shri Sujit Jaiswal. 2.1 As per the facts on record the Customs Officers, on 8-5-2000, found one Maruti Van standing in front of one godown located in Dum Dum Park, Kolkata. The Maruti Van was loaded with some cartons of foreign origin of ball bearing. Entertaining a doubt the Officers searched the godown premises and recovered 62,000 sets of ball bearing of Chinese origin. A diary containing some information was also recovered. Shri S.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also issued to all the concerned parties, proposing confiscation of the ball bearings, Maruti Van and imposition of personal penalties upon the various persons. The said show cause notice culminated into the impugned order passed by the Commissioner. 4. I have heard S/Shri P.K. Das, H. Kundalia and B. Mukrerjee, Advocates for the appellants and Shri D.K. Bhowmik, ld. JDR for the Revenue. 5. After giving my careful consideration to the submissions made by Shri Harshad Shah and after going through the impugned order of the Commissioner, I find that the said appellant had only claimed 39,000 pcs. of ball bearings out of the total seized 62,000 pcs. of ball bearings and have placed on record the documents showing the purchase of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied under Chapter IVA or Section 123 of the Customs Act, 1962. As such, the onus to prove that the bearings in question have been illegally smuggled into India lies heavily upon the Revenue. I find force in the above submissions of the appellants. There is no direct evidence on record showing that the ball bearings claimed by the appellants have been illegally smuggled into India. Merely because the appellants have claimed the ownership of a part of bearings do not lead the ipso facto conclusion that the bearings in question were smuggled, inasmuch there is nothing on record to show that the godown in question belonging to the appellant and all the ball bearings lying therein were related to the appellant. Admittedly the appellant is deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein the confiscation of the ball bearing was set aside by observing that the same being not notified under Section 123 of Customs Act, 1962, burden of proof as to illicit nature of goods lies on Department and there being no sufficient evidence, burden cannot be said to have been discharged. I have already observed that there is no evidence in the present matter and the ratio of the above decision applies. The appellants have also referred to the Tribunal s decision in the case of Dungarmal Mohta Ors. v. Commissioner of Customs (Prev.), W.B. reported in [2002 (140) E.L.T. 256 (T) = 2001 (47) RLT 345 (CEGAT - Kol.)]. Wherein the Tribunal s decision observed that when the goods are available in plenty in India and are not notified under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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