TMI Blog2013 (3) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... nding recorded by him reads inter alia as follows: The main question to decide now is that whether Snehangshu Ghosh who purchased the Phensydyl Linctus on basis of his license issued for his shop Ghosh Medical Balurghat which is about 4 Km from Indo-Bangla border, was going to illegally export the same. Phensydyl Linctus is a drug, formulation containing codeine and is often misused as a psychotropic substance and abused by drug addicts in Bangladesh. Hence, there is great demand of this drug as it is cheaper than narcotic drugs. From the trend of rampant smuggling of this drug along Indo Bangla border, the Government vide its Notification No. 35/2008 Cus (NT) dated 02.04.2008 notified this drug and restricted its movement in large qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notified drug the same would have been illegally exported to Bangladesh. The department has amply proved by their investigation that Snehashis Ghosh who is not dealing with drugs formulations in any ligitimate manner under proper disposal that is mandatory for prescription drugs is purchasing bulk of notified drug and taking it to the Indo Bangla Border for illegal export to Bangladesh. The Hon ble Tribunal in the case Kulbhusan Jain Vs- CC, New Delhi 2003(154) ELT 169(Tri Delhi) has held that initial burden was on the department to prove that the goods were of smuggled nature, cannot be accepted. As no doubt, the initial burden in a case of seizure of foreign origin of the goods remain on the department to prove the smuggled cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the party, an inference could be drawn that seized articles were smuggled goods. Similarly, Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Apex Court in the case of Shah Guman Mal Vs- The State of Andhra Pradesh, 1983(13) ELT 1631 (SC) 1980 AIR SC 793, while dealing with the question of burden of proof in a case of seizure of gold biscuits not in accordance with the Act and where presumption under Section 123 of the customs Act, 1962 was not available to the prosecution, was pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been seized or confiscated under the Customs Act. I find that the appellant had produced the goods after observing all the legal formalities for supplying the goods to different retailers. The Department, on the other hand, could not adduce any evidence to the contrary. It is only on the basis of the assumption that had the goods not been intercepted the same would have been brought to Balurghat where there is a trend of smuggling across the border, and would have been smuggled out of India. This is far fetched. We are really surprised to see that a quasi judicial authority acted in the manner as did the Commissioner of Customs. The Additional Commissioner had arrived at a finding that there was an attempt to illegally export the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commissioner of Customs were not demonstrated to be fallacious. Without doing that, the Commissioner of Customs or the Tribunal could not have tinkered with the order of the Additional Commissioner of Customs. The order under challenge is, therefore, set aside. The order passed by the Commissioner of Customs is also set aside. The matter is remanded to the Commissioner of Customs with a direction to hear the parties and to pass a reasoned order within two months from the date of communication of this order. It is desirable that the Commissioner of Customs who passed the order allowing the appeal shall recuse himself from hearing the matter unless there is no other officer who can here out the appeal. In order to avoid the loss arising ..... X X X X Extracts X X X X X X X X Extracts X X X X
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