TMI Blog2018 (12) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods bore foreign markings, will not be enough to conclude that the goods were smuggled. The investigation undertaken by the Revenue has failed to establish that the goods were smuggled - appeal allowed - decided in favor of appellant. - Cus. Appeal Nos.78403-78406/18 - FO/A/77020-77023/2018 - Dated:- 30-11-2018 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Miss Reena Rawat, Advocate for the Appellant (s) Shri A. K. Singh, Asstt. Commr. (AR) for the Revenue ORDER Per Bench: The present four appeals have been filed against the Orders-in- Appeal Nos.38-41/Pat/Cus/Appeal/2018 dated 31.05.2018. 2. The brief facts of the case are that the Customs Department sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the presumption that the goods were smuggled into India. She emphasized the fact that these goods were in the nature of readymade garments, which are not notified goods under Section 123 of the Customs Act, 1962. Only on the basis of certain labels which bore markings as Made in Bangladesh and Jack Jones , the goods cannot be presumed to be smuggled goods. As such, she prayed that the confiscation of the goods be set aside. She relied upon various case laws to support her arguments including the following : (i) B. Laxmichand Vs. Government of India: 1983 (12) ELT 322 (mad.) ; (ii) Commr. of Customs (Prev.), Patna Vs. Manish Kakrania: 2009 (247) ELT 591 (Tri.-Kolkata) (iii) Uma Trading Company Vs. CC (Prev.), Patna: 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are of the view that the investigation undertaken by the Revenue has failed to establish that the goods were smuggled. 9. We have also carefully considered the various case laws relied upon by the appellants. In the case of Manish Kakrania (supra), this Bench of the Tribunal has observed as follows : 6. In the present case, the Revenue wants to impose penalty on the respondents under Section 112(b) of the Customs Act which provides penalty in respect of a person, who is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing in respect of the goods, which he knows or has reason to believe is liable for confiscation. The goods in question are not notified goods under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the ld. AR in the case of Nazir Ur Rahman (supra) is concerned we find that in that case the persons from whose possession the goods were recovered were not able to establish how they come to possess the said goods whereas in the instant case, the appellants have produced the cash memos for purchase of the said goods and the department could not produce anything contrary or challenged the veracity of the said documents. As already discussed, supra, the onus rested with the department to show the smuggled nature of the goods. The department could not discharge that onus. In these circumstances the ld. Commissioner order is not sustainable and is accordingly set aside and appeals in the case of above three appellants are allowed with co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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