TMI Blog2004 (3) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... w involved are identical and hence they were heard together and are disposed of by this common order. 3.Appeal Nos. C/218 and C/219 are filed by V. Muniyandi and S. Kaspur respectively challenging the order of confiscation of electronic goods valued at Rs. 8,82,800/- with option to redeem the same on payment of duty of Rs. 4,00,000/- and imposing penalty of Rs. 40,000/- on these appellants under Section 112(b) of the Customs Act, 1962. 4.Appeal No. C/313/2003 is filed by Hiralal Kirupalani against the order of confiscation of electronic goods valued at Rs. 2,48,600/- with option to redeem the same on payment of duty of Rs. 1,00,000/- besides imposition of penalty of Rs. 25,000/- on the appellant under Section 112 of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat at the relevant time, the goods were non-notified and were available in the open market and mere non-production of the bill by the appellant, a small concern does not lead to an inference that he had smuggled those goods. 7.Heard Shri A. Jayachandran, learned JDR who defended the orders impugned. He has also referred to the comments received from the department, a copy of which is filed in the file. It is inter alia stated therein that the statements have been recorded under Section 108 of the Customs Act and as such is valuable evidence. He has further stated that the goods are of foreign origin and are not covered by any legal and other document and that in itself is the direct evidence. On the basis of markings, voucher Nos, serial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circular F.N. 04/149/65-Cus-III, dated 14-12-65 has issued guidelines in regard to town seizure. The guidelines inter alia reads as under : (a) Except for the commodities which attract the provisions of Section 178A of SCA or Section 123 of the Customs Act, the burden to prove that the goods seizure are smuggled is on the Customs authorities. (b) When the goods are recovered from a person who is not proved to be the importer of the goods and claims to be a purchaser of the imported goods, onus is always on the customs authorities to establish that the goods were imported contrary to any import or prohibition or restriction and they have to bring home the guilt to the person alleged to have committed a particular offence b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The evidence to justify an inference of smuggling should be one which is relevant for providing the unauthorised importation of the goods and not the unauthorised possession of the goods. 9.Further the case law cited by the learned Counsel for the appellants in the matter of Sadbhavana v. CC, Indore reported in 2003 (158) E.L.T. 652 wherein it has been held that failure to produce document regarding legal import/possession of foreign origin goods, the burden to prove the smuggled character of the goods lies on the department, squarely applies to the facts of the present case. In the instant case as noted above, the goods are non notified goods, and are freely available in the open market for any one to purchase or do business. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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