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TMI Blog2004 (12) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... , their appeals have not been listed for hearing. 2. The appellants have contended that they have purchased these goods from open market in New Rajpatra Market in Delhi. They pointed out that the department has asked the DRI to verify this point and the DRI have not answered to them. Therefore, their plea that it was purchased from New Rajpatra Market in Bunty's brother's shop should be accepted. It is also pointed out that the items are not notified items and its confiscation is not valid, as they have been purchased from the open market. Their further plea is that merely because the goods have foreign marking that by itself cannot be held that they are smuggled ones especially when they have been purchased from the open market. They submitted that the burden to prove that they are of smuggled nature has not been discharged by the Revenue when the goods are not notified under Section 123 of the Customs Act. 3. The learned DR pointed out that the goods are smuggled ones and as they are smuggled ones, its confiscation is valid as held by the Madras High Court in the case of A. Shaud Ali v. ACC, Madurai - 2001 (133) E.L.T. 554 (Mad.). 4. We have carefully considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d evidence to prove that the goods were smuggled by the appellant." A.B. Kundu v. Coll. of Customs - 1998 (104) E.L.T. 732 (T) 1984 ECR 2296 (CEGAT) in Coll. of Central Excise P.C. Agarwal v. Collector of Customs - 1990 (47) E.L.T. 45 (T) = 1990 (26) ECC 38 Samerchand Jain v. CC - 1992 (40) ECR 540, 1986 (6) ECR 669 Amar Dutta - 1980 (49) E.L.T. 61 (6) The burden of proof in respect of non-notified goods under section 123 of the Customs Act, 1962 is on the department. No positive evidence is let in to prove that the goods are smuggled in nature. The following ratio decisions fully support the above contention and the issue is no longer res integra. (1) Burden to prove smuggled nature of goods on the Revenue when the goods are not notified under Section 123 of Customs Act, 1962. NIPA Traders v. Comm. of Customs - 2004 (165) E.L.T. 435 (Mumbai) Confiscation of goods - Smuggled goods burden to prove - Goods contained chemicals of foreign origin which were freely importable - Department not discharged burden o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside - Sections 123 and 125 Ravinder Khurana v. CCS, Delhi - 2003 (161) E.L.T. 360 Smuggling - Foreign markings - Burden of proof failure to produce documentary evidence relating to purchase of goods cannot shift burden of proof regarding nature of goods from department to assessee when goods are OGL and freely available in market for sale - Goods not liable to confiscation - Not assessee liable to penalty - Sections 112(b) and 125 Loknath Singh v. CCS - 2003 (161) E.L.T. 808 Kolkatta Smuggling - Burden of proof - Non-notified goods - Mere failure on the part of the appellant to produce the legal documents showing importation of the same does not lead to conclusion that goods are smuggled - Confiscation set aside - Ramprakash v. Collector of Customs - 2003 (161) E.L.T. 882 Smuggling - Evidence - Burden of proof - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known person may raise suspicious but not true of smuggled nature-confiscation not sustainable. Bhogilal Mehta v. Commissioner of Customs - 2003 (154) E.L.T. 183 Smuggled goods - Evidence - Statement changing stand - Appellant having failed to locate the broker from whom he has purchased the belts of foreign origin taken plea that goods being non-notified - Onus is upon revenue that goods are smuggled - Nothing on record to show that goods are smuggled - Confiscation, fine, penalty set aside - Sections 111, 112 and 125 Sanjeev Kumar v. Commissioner of Customs - 2002 (150) E.L.T. 322 Smuggling - Evidence - Burden of proof - Precious stones not notified under section 123 - Mere non production of documents showing the purchase of stones as also the accounts is not a concluding factor to prove smuggled character - Burden to prove that the goods are of foreign origin and have been illegally imported is on the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f origin on few pieces of metal scrap not conclusive to prove of entire scrap being foreign origin - No evidence placed by Revenue to show that goods are smuggled - Confiscation not justified - Sections 111(d) and 123 of Customs Act. Confiscation of conveyance also not proper Section 115(ii) Dipak Deb - 2003 (157) E.L.T. 237 Smuggled, nature of goods - Burden of proof - Mere non-production of documents or acquisition of goods cannot lead to the conclusion that the goods are smuggled - Foreign mark on paper/wrapper cannot be relied upon - Penalty not imposable - Confiscation of vehicle not warranted - Sections 111, 112 and 115 Lakshmi Narayana Somani v. Commissioner of Customs - 2003 (156) E.L.T. 131 Smuggling - Foreign origin goods - Markings - Mere trade opinion not sufficient to establish that betel nuts seized are of foreign origin - Markings on outer bags also cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied only on assumption and presumption. (a) Oudh Sugar Mills - 1978 (2) E.L.T. (J 172) (b) Ebenezer Rubber - 1986 (26) E.L.T. 997 (c) Premier Packaging - 1986 (26) E.L.T. 333 (d) State of Maharastra v. Prithviraj Pokhraj Jain - 2000 (126) E.L.T. 180 (e) A.V. Fernandez v. State of Kerala - AIR 1957 SC 657 (f) McDowel & Co. v. CTU - AIR 1997 SC 1459 (g) Md. A.H. Khan v. Commissioner of Wealth - AIR 1997 SC 1 5. The Commissioner has confirmed the duty with regard to the goods, which were not seized from the appellants, but on the ground that the appellants had admitted in their statements about having purchased smuggled goods on earlier occasions. This is not proper in law. The goods had to be seized and their value has to be drawn up and appellants had to be issued Show Cause Notice before the demands are confirmed under Section 28 of the Customs Act. Mere admissions made in the statements of earlier purchases cannot be a ground to confirm the duty without proceedings initi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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