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Commissioner of Customs, Central Ex, & S. Tax, Siliguri Versus Sri Ratan Kumar Sethia

2016 (2) TMI 53 - CESTAT KOLKATA

Onus to prove goods are smuggled or not - licit or illicit import of dry battery cells & Calculators - Appellant contended that even if some of the goods bear a foreign country name the same does not make them smuggled goods as all the seized goods are freely available on the roadsides in India. That once the goods are not liable to confiscation then Revenue has no authority to retain the seized good, & were required to be released to the owner or the appellant who was the custodian of the goods .....

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n origin were used for concealing contrabed goods and are not considered as liable to confiscation under Sec 119 of the customs Act 1962. - However calculators of foreign origin, mentioned at Sr. No. 3,4, & 5 of the inventory dt 23/8/10, are liable to confiscation in view of Sec 123 of the customs Act 1962. As these is no absolute prohibition on importation of these goods, therefore, these calculators can not be confiscated absolutely. Appellant is thus required to be given an option to rede .....

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issioner (Appeals-IV) Kolkata, under which first appellate authority has set aside the penalty / confiscation and directed to release the goods / sale proceeds to the appellant. 2. Sh. S. Nath AC (AR) appearing on behalf of the Revenue argued that order passed by the first appellant authority is not justified & should be set aside in view of the following reasons:- (i) That dry battery cells & Calculators mentioned at Sr No. 2,3,4, & 5 of the inventory dt 23/8/2010 are notified goods .....

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djudication therefore, first appellate authority has wrongly allowed the release of goods/sale proceeds to the appellant. (iv) That goods of Indian origin were used for concealing smuggled goods & were correctly confiscated under Sec 119 of the customs Act 1962. It was thus argued by the Learned AR that OIO dt 5/5/2011 passed by the Adjudicating authority should be restored. 3. Sh. Arijit Chakraborty (Advocate) appearing on behalf of the appellant argued that first appellate authority has gi .....

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sides in India. That once the goods are not liable to confiscation then Revenue has no authority to retain the seized good, & were required to be released to the owner or the appellant who was the custodian of the goods during transportation. That some parties also claimed the seized goods which was not accepted by the adjudicating authority. 4. Heard both sides & perused the case records. It is observed from the inventory list dt 23/8/2010 prepared by the Revenue & certified by Add .....

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010 alongwith the purchase bills of some of the seized goods but the same were brushed aside by the lower authorities Even if some of the goods seized (Sr. No. 6, 7, 8, 16, 19, 20, & 26) bear foreign marking but that does not mean these were smuggled in nature. As these goods are not notified under Sec 123 of the Customs Act 1962, therefore, the onus is on the Revenue to establish that these goods were smuggled into India, Except for the goods mentioned at Sr No. 3,4,&5 (Calculators) all .....

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