TMI Blog2002 (7) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... also told the officers that he had allowed the user of the godown to his friend Rakesh Gulati (appellant No. 1), as a gesture of goodwill to store his goods. As a result of the search, 340 sets of crockery of ARCOPAL brand (made in France) and 734 sets of crockery of ARCOROC brand (made in USA) were recovered. Besides that 80 pieces of air-conditioners made in Japan were also found lying in that godown. All these goods were seized as Shri Sanjay Jain could not produce any document showing lawful importation and acquisition of the same. In follow up action, the residential premises of Sanjay Jain at Punjabi Bagh was also searched but nothing incriminating was recovered. After search/seizure, another person by the name of Ajay Arora appeared before the officers of the DRI with some documents in the name of M/s. Ashirwad International as importer of the seized air-conditioners. He also tendered his statement that he had no business relation with Rakesh Gulati, appellant No. 1 and that the documents produced by him were brought by him from the wife of Rakesh Gulati. He also disclosed that godown from where the goods were seized, was constructed in the end of the year 1999 by Sanjay Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, so as to believe that the seized air-conditioners were of Japan origin. The third noticee Sanjay Jain denied his business relations with both these above mentioned appellants and alleged in the reply that he rented out in good faith his godown to Rakesh Gulati, appellant and was not aware of the nature of the goods stored in the godown. 4. The Commissioner after scrutinising the replies of the appellants and Sanjay Jain passed the impugned order vide which he ordered the confiscation of the seized goods but gave an option to the appellants to get the same redeemed on payment of fine and also imposed penalty on them, as detailed in the order itself. The Commissioner, however, dropped the proceedings against Sanjay Jain. 5. The present appellants have come up in appeals for questioning the validity of the impugned order. 6. The learned Counsel has contended that the initial burden was on the department to prove that the seized goods were of smuggled nature especially when these goods were neither notified under Section 123 of the Customs Act or any other provisions of Chapter IVA of the Act and from the weaknesses if any in the defence of the appellants, no inference could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these cases, it has been observed that the foreign origin of the goods by itself is no evidence to establish the smuggled nature, when the goods are freely importable by actual user and there was no restriction of their purchase and sale under the Customs Act. Even the lack of proper account of purchase and sale, was not sufficient itself to raise an inference that the goods were smuggled . 9. We find from the impugned order that the goods (crockery sets) had been ordered to be confiscated, by infering the same to be smuggled one, being of foreign origin and that the appellant Rakesh Gulati, who claimed to had purchased the same from the market, has failed to substantiate his plea. But if we read the statement of Rakesh Gulati appellant along with that of Vijay Kumar Gandhi, it is quite evident that he had purchased the crockery sets from Vijay Kumar Gandhi who imported the same in the name of the firm M/s. Quick International. He made his statement firstly on 3-10-2000 wherein he alleged of having purchased the crockery sets in the open market and again, he tendered statement on 5-3-2001, wherein he submitted the import documents relating to the seized crockery sets and stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase in the market, at the time of seizure. Our this view, finds full support from the ratio of law laid down in Makhanlal Gupta v. CC (P), West Bengal - 1999 (113) E.L.T. 860, wherein in similar circumstances it has been so observed. Therefore, the impugned goods i.e. crockery sets could not be, in our view, legally seized and confiscated. The impugned order of the Commissioner, in this regard, cannot legally sustained and deserves to be set aside. This takes us to the seizure and confiscation of A.Cs. 11. The seized A.Cs. (80 in number) are also neither notified under Section 123 or provisions of Chapter IVA of the Customs Act. They are freely tradeable and there is no restriction on their sale and purchase in the open market. Therefore, the initial burden to prove the illegal import/smuggled nature was on the department, in view of the law laid down in the cases detailed in the preceding para 8 of the order but the department has failed to discharge this burden. 12. The learned Commissioner had ordered the confiscation of the A.Cs. not on the basis of any evidence regarding illegal import of the same but on the ground that these are of foreign make and that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were brought to godown in March, 2000, whereas B/E pertained to the import made in June, 2000, referred and relied upon by the learned Commissioner while rejecting the import documents furnished by Sanjay Khurana, appellant, has been, in our view, wrongly given undue importance. This, Sanjay Arora admittedly had no business relation with the appellant Sanjay Khurana. He was friendly with Sanjay Jain and was residing in Saraswati Vihar whereas the godown from where the goods were seized, was located at Ashok Vihar and as such, he had no occasion to see the actual arrival of the seized goods in godown in March/April, 2000. He even himself in his statement also admitted that he only heard Sanjay Jain jokingly talking to Rakesh Gulati about air-conditioners and that too while taking drinks in the club. Apparently he had only hearsay knowledge about the arrival of the A.Cs. in the godown from where these were seized and as such, no credence could be given to his evidence for discarding the import documents showing legal import of the seized A.Cs. by Sanjay Khurana, appellant. 14. Similarly, declaration furnished by M/s. N. Haresh Pte. Ltd. had been wrongly ignored by the learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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