TMI Blog2003 (11) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ese goods from the premises of the appellant to the premises of another 100% Export Oriented Unit. The remaining 10 cartons were not covered by any such certificate. Ranbeersain R. Goyal the director of the firm appeared before the officer on 2-3-2000 and claimed that he had bought 10 cartons from the market on payment of cash. He could not produce any bill or furnish any evidence as to the identity of the seller. Notice was issued by the department demanding duty under Section 28 on these 10 cartons of 20/1 yarn proposing confiscation under Section 120 of the Act and the remaining is 134 under Section 119 of the Act on the ground that they were used to conceal the other 10 cartons and confiscation of the vehicle under Section 115 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have travelled beyond the scope of the notice. 5.As I have observed, the notice invoked the provisions of Section 123 of the Act and the Additional Collector in his order also cites that the burden of proving that the goods had not been smuggled which lay upon Goyal Inds. Ltd., had not been discharged by it. Counsel for the appellants accepts that the yarn in question was notified under Section 123 of the Act. That being so sufficient material has been provided to the appellant in the notice for it to conclude that the goods were perhaps to be confiscated as having been smuggled. Smuggling is defined in sub-section (39) of Section 2 of the Act as meaning any act or omission which would render the goods liable to confiscation unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cast upon a person to prove that the goods are not liable to confiscation, merely saying that the goods are duty paid does not discharge that burden. The goods may become liable for confiscation not just for non payment of duty but for various reasons. Section 111 has in 16 clause each listing various circumstances which would render the goods liable to confiscation, and not all of them for payment of duty. From the fact that the appellant has failed to discharge by showing the evidence of leviable importation of the goods, the goods become liable to confiscation. In fact the claim that the goods were purchased in the open market itself is entirely unsubstantiated. The appellant is not able to show evidence of such purchase or to name the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the order have not indicated how the large number of cartons were used to conceal others. On consideration of these facts, I do not think a case has been made out for confiscation of 134 cartons and set aside their confiscation. The consolidated fine for redemption of these goods of Rs. 92,000/- is reduced to Rs. 25,000/-. 8.On these facts it is clear that Goyal Inds, and Ranbeersain Goyal, the director become liable to penalty under Section 112. I do not find ground to reduce penalty which is commensurate with the gravity of offence. I do not find ground to reduce fine of Rs. 5,000/- owner of the truck who carried the goods. There is nothing to show that he was aware by the fact that these 10 cartons in question was smuggled. No doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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