9911796707
TMI Blog2016 (11) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... case in brief, are that on 03.03.2013, a team of DRI officers of Muzaffarpur, intercepted a truck at Laxmipur Fuel Station, Raxaul, coming from Raxaul side and destined to Delhi. It was found that the truck was loaded with zinc dross and iron scrap, packed in plastic bags and old and used iron sheets. It was noticed that the plastic bags in which the said goods were packed, were bearing the marking of different factories of Nepal. The driver could not produce any documents of importation of the goods. Thedriver in his statement dated 03.03.2013 stated that the goods were loaded from a godown situated in a lane located about 5 Kms away from railway crossing at Raxaul. The goods and truck were seized under Section 110 of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mainly composed of oxide of zinc, salt of ammonium chloride, metallic zinc, siliceous matter together with small amount of lead, iron, aluminium..............". The concerned authority concluded that Above analytical finding reveals that sample under reference is other than zinc dross, however, it seems to be residue from processing of various form of Industrial Zinc (Zinc residue). 4. The ld.Advocate appearing on behalf of the appellant submits that the goods are freely available for purchase and sale in the country. Admittedly, the goods were purchased in India. The goods were also loaded in a place within the territory of India being transported to a place (Kanpur) within the Indian territory. The statement of the appellant does not sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d indicate that it is required to be established that the seized goods are smuggled goods. In the present case, I do not find any material that the seized goods are smuggled goods except that the packing material are bearing the name of the factories of Nepal. Even, the Chemical Examiner's report would not indicate that the seized goods are smuggled goods. The findings of the lower authorities that the seized goods are smuggled goods merely on the basis of the packing material, cannot be accepted. The appellant categorically stated that he had purchased the materials locally and the goods are freely available in the open market which was not disputed by the Revenue. The scrap being non-notified goods, smuggled nature of goods, are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... types of articles. We have already pointed out that in the report of the chemical examination, there is no mention of any attempt of erasing the foreign marks. Even the Revenue could not mention the name of the foreign country where such metal-scraps were allegedly manufactured. 6. It is true that the statements made under Section 108 of the Act can be used against the persons from whom the materials have been seized without any corroborative evidence, provided, such statement is recorded after service of summons as required under the Act and that those are voluntary. In the cases before us, all that has been proved is that metal-scraps, even having no marks of foreign origin, have been transported from lslampur in the district of Murshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Collector of C.Ex., Vs. Decent Dyeing Company : 1990 (45) ELT 201 (SC) in the context of Central Excise Law observed that burden to prove duty paid character of the goods is not on the purchaser or job worker but Department to prove non-payment of duty so as to deny concessional duty. Similarly, in the present case, the appellant purchased the non-notified goods locally, but Department to prove smuggled goods. 10. After considering the facts and circumstances of the present case and the case laws, I am of the considered view that the confiscation of the seized goods and imposition of penalty on the appellant cannot be sustained and accordingly, it is set aside. The appeal filed by the appellant is allowed. (Pronounced in the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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