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TMI Blog2011 (7) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual User condition) claiming the benefit of Notification No. 30/97-Cus and 48/99-Cus at Chennai Port and diverting the said stainless steel coils & sheets to other places including Mumbai to be sold in the local market. Based on this information, premises of M/s M.H. Warehouse and M/s Priya Warehouse both situated in Darukhana, Mumbai were searched by the offices of Customs on 23.2.2001 and stainless steel coils/sheets found there were detained and these goods were weighed on 8.4.2001 and weight of 23 coils stored at M.H. Warehouse were found 8340 Kgs. and 18 coils stored at Priya Warehouse were found 20230 Kgs. These goods were seized by the department on 17.5.2001 and 9.5.2001 respectively. The seized goods were claimed by M/s Metal Kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, a show-cause notice was issued to M/s Metal King calling upon them for proposing the confiscation of the goods under Section 111(d) and 111(o) of the Customs Act, 1962, demanding duty under Section 28 of the Act and proposing the penalty under Section 112 of the Act. The show-cause notice was adjudicated by the Commissioner vide the impugned order, which is before us in appeal. 3. The learned Counsel appearing for the appellant has submitted that as per show-cause notice the stainless steel coil/sheets were imported against a valid import licence but being diverted to Mumbai in contravention of Notification No.30/97 as such the goods cannot be considered as smuggled goods or imported unauthorizedly rendering them liable for confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods. Therefore, no penalty can be imposed on them for breach of the conditions of Notification. 5. Regarding the statement given by the Warehouse keepers of the Warehouse, it was clearly deposed that the said stainless steel coil and sheets were deposited in their Warehouse were transported by Truck No. MCU-3990 and MH-04 S 9821 which are the Maharashtra's numbers and not the Tamilnadu's numbers, which supported their case that these coils were not brought from Chennai. He further submitted that the department's contention that the goods were not covered with import documents of the suppliers on the basis of Panchnama dated 5.2.2002 and subsequent statements of suppliers does not stand as during the course of physical inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese seven noticees. It is not the department's case that anyone of the importers at Chennai in his statement has stated about sale of these diverted goods to the appellant. Therefore, the seized goods at Mumbai in the Warehouses have no connectivity to the goods imported at Chennai. The adjudicating authority himself has not confiscated the goods under Section 111(o) of the Customs Act for contravention of any condition of exemption Notification. 8. Since the goods seized in Mumbai at M.H. Warehouse and Priya Warehouse cannot be correlated to the imported goods at Chennai, the seizure of goods is just town seizure in Mumbai. The goods have been seized by the department on the reasonable belief that no duty has been paid on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not notified under Section 123 of the Customs Act. Therefore, the burden to prove that the goods are smuggled one lies on the department and not on the appellant. They contended that the department has not discharged the burden that the goods in question are smuggled by the appellant. Appellant further contended that the goods in question are freely importable under Open General Licence and there is no prohibition in respect of the import. Once it is held that the goods have no connectivity with the goods imported at Chennai Port by the adjudicating authority there cannot be any violation of import policy and goods cannot be confiscated under Section 111(d) of the Customs Act. We agree with these contentions of the appellant. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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