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2016 (11) TMI 760 - CESTAT KOLKATA

2016 (11) TMI 760 - CESTAT KOLKATA - TMI - Confiscation of seized goods - 103 bags of zinc residue and 94 bags of iron scrap - non-production of documents for production of goods - Held that: - The expression any goods and smuggled goods in Section 123 (1) of the Customs Act, 1962, would 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 .....

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ggled nature of goods , are to be proved by the Revenue by producing affirmative and tangible evidence. The lower authorities proceeded on the basis of assumption and presumption that the goods were seized from Raxaul, which is near to Nepal cannot be basis for the confiscation of the goods. I find that the Tribunal in the case of Commr. of Customs (Prev.), Kolkata Vs. Manoranjan Banik [2003 (11) TMI 428 - CESTAT, kolkata] on an identical situation rejected the appeal filed by the Revenue. In th .....

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ut Department to prove smuggled goods. - Confiscation of the seized goods and imposition of penalty on the appellant cannot be sustained - appeal allowed. - Cus. Appeal No. 76381/14 - Order No. FO/76161/2016 - Dated:- 11-11-2016 - Shri P. K. Choudhary, Judicial Member Shri N. K. Choudhary, Advocate for the Appellant Shri S. N. Mitra, A.C. (A.R.) for the Revenue ORDER Per Shri P. K. Choudhary The appellant filed this appeal against confiscation of seized goods i.e. 103 bags of zinc residue an .....

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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, 1962. The owner of the truck, .....

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nd truck and imposition of penalty on the appellant and the owner of the truck. 2.2 The adjudicating authority confiscated the seized goods and truck and imposed redemption fine of ₹ 1,30,000/- and ₹ 1,80,000/- respectively. Penalty was imposed to the tune of ₹ 50,000/- on the appellant and ₹ 20,000/- on the owner of the truck respectively. By the impugned order, the Commr. (Appeals) upheld the adjudication order subject to reduction in penalty amounts to ₹ 25,000/- .....

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mposed 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 count .....

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arious case laws in support of his submissions. 5. On the other hand, the ld.A.R. appearing on behalf of the Revenue, drew the attention of the Bench to the relevant portions of the impugned order. The main contention is that the packings were bearing the name of the factories of Nepal. Further, the scrap metals has no source of input at Raxaul but only in Nepal and therefore, it appears that the seized metals are of smuggled nature. 6. I find from the record that the appellant in his statement .....

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he burden of proving that they are not smuggled goods, shall be on the person from whose possession the goods were seized. 7. The expression any goods and smuggled goods in Section 123 (1) of the Customs Act, 1962, would 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 E .....

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affirmative and tangible evidence. The lower authorities proceeded on the basis of assumption and presumption that the goods were seized from Raxaul, which is near to Nepal cannot be basis for the confiscation of the goods. I find that the Tribunal in the case of Commr. of Customs (Prev.), Kolkata Vs. Manoranjan Banik : 2004 (165) ELT 237 (Tri.-Kol.) on an identical situation rejected the appeal filed by the Revenue. In that case, the seized goods were wrapped by foreign papers. 8. The Hon ble .....

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under Section 108 of the Act merely stated that at Islampur in the District of Murshidabad, ship-breaking materials of foreign origin are stored by various cycle-carriers from Bangladesh and from that place those articles are delivered to the godown of Raj Kumar Jaiswal. But the Customs Authority could not get hold of any of such cycle-carriers who actually brought those materials from Bangladesh while they were allegedly smuggling those goods or even those types of articles. We have already poi .....

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he 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 Murshidabad to Calcutta. The seized goods in question being undisputedly non-notified item in terms of Section 123 of the Act, the initial onus is upon the Revenue to prove that those are of foreign origin at the first instance and if the said ingredient is proved, it must further be proved to be .....

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