TMI Blog2020 (1) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly cited the cases of Hon ble Patna High Court in the case of Commissioner of Customs, Patna Vs. Manish Kakrania [2012 (5) TMI 722 - PATNA HIGH COURT] wherein the Hon ble High Court has held that in cases of smuggling the burden of proof to a demonstrable degree lies on the Department. Such burden would be shifted to other person only if circumstances such as place and condition of goods, manner of packing, labeling, transportation, prima facie indicate smuggled nature of goods - In absence of such circumstances and further absence of any other evidence, confiscation of goods and penalties is not sustainable. In the present case, because of inconsistencies in the process of seizure, as is evident from the records of seizure memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. cloth items at 0050 hrs on 31.05.2016 near Indo-Nepal border pillar no. 299. On enquiry, the occupants of the vehicles failed to produce any documentary evidence for legal possession of the goods. The SSB, therefore, on the suspicion that the goods were being taken to Nepal illegally, handed over the consignment alongwith the occupants to the LCS, Bhithamore, for further investigation and necessary action. The officials of Customs, Bhitahamore, on the reasonable belief that the consignment indeed was being smuggled to Nepal effected seizure under Section 110 of the Act. 2(b). In the course of investigation, the statements of the three occupants, noticee nos. 1 to 3 were recorded, under Section 108 of the Act, wherein noticee no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isionally to the rightful owners on similar grounds. 2(e). During the course of investigation, the Bill of Exports claimed to have been filed by the noticee no. 04, were found not to have been exported by him but by some other exporter, namely M/s Vaidehi Trader, Bhithamore. This was explained by the noticee no. 04 that since he didn t have the IEC, a prerequisite for exports of value of more than ₹ 25,000/- and, as such, he had used the IEC of M/s Vaidehi Traders. 2(f). The Bills produced by the noticee no. 04 was sent to Ahmedabad for checking it s veracity but no reply was received. Reminders too remained unanswered. This created doubts about their genuineness. However, the noticee no. 04, in their defense reply s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the option, under Section 125 of the Act, to redeem the goods on payment of ₹ 3,01,590/- and since this amount has already been paid at the time of provisional release of the goods, the same is ordered to be appropriated. (b). I order for confiscation of the seized pickup van, bearing no. BR-06GA/9337, valued at ₹ 2,00,000/- under Section 115(2) of the Act. However, the noticee no. 05, Sri Navin Kislay, the owner of the vehicle, is given the option, under Section 125 of the Act, to redeem the vehicle on payment of Redemption fine amounting to ₹ 40,000/- and since this amount has already been paid at the time of provisional release of the vehicle, the same is ordered to be appropriated. (c) I order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memo does not tally with the panchnama. Place of seizure in also vague. It also appears that the panchas were not independent. 10. Shri Sanjay Sah has claimed that he has exported goods valued at less than ₹ 25,000/- and also exported goods valued more than ₹ 25,000/ in partnership with M/s Vaidehi Traders, Bithamore. Shri Sanjay Sah also submitted copies of Bill of Entry to the investigating authorities as is evident from his statements recorded under Section 108 of Customs Act, 1962. But it appears that the investigating authority did not forward such copies to the Adjudicating Authority. Moreover, there is no bar to make export through other persons or exporter. Regarding the invoice of cloth Commission agent genuin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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