TMI Blog2018 (3) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents. Hence, the onus lies with the department to establish that goods are of smuggled nature as it is non notified items. The Tribunal in the case of Mohd. Tahir Vs. Commissioner of Customs (Lucknow) [2013 (4) TMI 60 - CESTAT NEW DELHI] held that statement of co-accused cannot be made the sole basis for arriving at a decision against the other accused - In the present case, it is noted that the statement of Driver is uncorroborative in nature. The impugned Orders cannot be sustained - appeal allowed - decided in favor of appellant. - Appeal Nos. C/75513-75520/2015 - Order No. FO/75077-84/2018 - Dated:- 16-1-2018 - Shri P. K. Choudhary, Member ( Judicial ) Shri N. K. Chowdhury, Advocate for the Appellants Sri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lbaboo Prasad of Om Shakti Traders, Dumari. As the goods were in a damaged condition, Shri Lalbaboo Prasad returned the goods from Dumari to Raxaul to Panna Lal Shah. The goods were provisionally released. It is submitted that the Adjudicating authority confiscated the goods on the basis of the statement of the Driver ignoring the records as available. The Learned Counsel referred various Case Laws. 4. The Learned A.R for the Revenue reiterated the findings of the lower authorities. It is submitted that the documents submitted by Shri Panna Lal Shah was denied by M/s. Shiva Trader, Delhi. 5. I find that the seized goods namely Pulses are non-notified items under Section 123 of the Customs Act, 1962. In all these cases Shri Panna Lal S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are of smuggled nature as it is non notified items. The Tribunal consistently viewed in different decisions that circumstantial evidences cannot take the place of legal evidence in the case of non-notified items. The Tribunal in the case of Pritam Singh vs. Commr. Of C.Ex, Lucknow [2005 (189) E.L.T. 70 (Tr.i-Del.)] observed that seizure of goods from Tractor and Trolley could even be legally made as Tractor and Trolley at that time was roaming from the Indian territory at a distance of 1.5 Km from the Nepal border would not be inferred that the goods were loaded in Tractor were meant for export. The Tribunal in the case of Mohd. Tahir Vs. Commissioner of Customs (Lucknow) [2012 (286) ELT 586 (Tri.-Del.)] held that statement of co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in holding that Revenue was failed to conclusively proved that betel nuts have been smuggled into India from off route from Bangladesh. Even though I agree with Revenue s contention that certain irregularities in the nature of documents and statements from Chandra Roadways and Mangalam Parivahan Pvt. Ltd. has led to inconsistencies. Even supplier of stitching machines has not been found in his declared place of business and there was statement of driver in favour of Revenue. But I agree with the findings that merely on the basis of these indications, it could not be conclusively proved that seized goods were smuggled from Bangladesh border. 16. Otherwise, in view of the fact that the betel nuts are non-notified items, the onus to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to acquisition of the goods was false, the burden or the onus shifted to the persons from whose possession the goods were seized to establish how they came to possess the goods. But in the present case department failed to do so. Actually availability of bill of entry and transfer of betel nuts from torn bags to new bags could not prove that possession was illegal. Thus onus did not shift to the respondent following the ratio of the decision of the Hon ble Supreme Court in the cases cited supra. Accordingly the Department could not discharge the burden cast upon them. Furthermore, the department has no evidence to prove that goods were imported in violation of Section 111(b) of the Customs Act, 1962. 7. The Learned Counsel strongly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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