TMI Blog2004 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... s Office, Madras, where there are shops and they are sold openly. It is their contention that the goods are not smuggled ones and are sold from the shops, which are located near the Customs House, Madras, itself. These goods were brought by them to Bangalore in a Maruti Van and the Van was seized by the police and these goods and the persons were made over to the custom officials who recorded the statements and proceeded against them in terms of the Customs Act for absolute confiscation and for imposition of penalty. The Commissioner, in the impugned order, has come to the conclusion that the goods are smuggled goods; that the appellants did not produce any documents to prove their licit possession of the goods. He has also noted that the appellants did not possess commercial/sale documents purchase receipts, sales tax receipts or atleast some correspondence between the supplier and the purchaser to produce their licit possession of their goods. Therefore, in the absence of these documents, he has held that the burden to prove the same to be not of smuggled nature has shifted to the appellants and they have not discharged the same. 2.We have heard both sides in the matter. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggling - burden of proof - foreign origin goods - departmental authorities to prove in a positive manner that the goods are smuggled and not appellant to prove negative fact that goods are not smuggled - confiscation not warranted - Section 111(d). (d) V. Muniyandi v. CCs, Chennai - 2004 (167) E.L.T. 215 (Chennai) Confiscation of goods - foreign marking - merely because goods are in trade quantities and there are foreign markings - that by itself cannot lead to an inference that goods have been smuggled - goods involved being non-notified goods burden to prove that they are smuggled lies with the department which is not discharged - confiscation, penalty set aside. Section 111, 112 and 123. (e) Commissioner of Customs v. J.T. Parekh - 2004 (167) E.L.T. 77 (Mumbai) Smuggled goods - burden of proof - goods of foreign origin found in shop premises and not notified - merely because goods are of foreign origin and bills not available not lead to a belief that goods are smuggled - smuggled nature of goods not proved by department - confiscation not sustainable - Section 111 (d) and 123. (f) Muchipara Consumers Co-op. Stores v. CC, Bangalore - 2003 (160) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds not notified goods and available in the open market - mere non-production of the bill by the appellant - a small concern - not leading to an inference that they had smuggled those goods - department having failed to discharge the initial burden - seizure of goods and penalty not sustainable - Section 111, 112 and 123. (m) Commissioner of Customs v. National Radio Products - 2003 (156) E.L.T. 908 Smuggling - burden of proof lies with department unless goods notified under section 123 - non-production of documentary evidence showing legal importation does not conclude to smuggled nature - purchase from unknown person may raise suspicious but not true of smuggled nature -confiscation not sustainable. (n) Sodilal Mehta v. Commissioner of Customs - 2003 (154) E.L.T. 183 Smuggled goods - evidence - statement changing stand - appellant having failed to locate the broker from whom he has purchased the belts of foreign origin taken plea that goods being non-notified - onus is upon revenue that goods are smuggled - nothing on record to show that goods are smuggled - confiscation, fine, penalty set aside - section 111, 112 and 125 (o) Sanjeev Kumar v. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient to establish that betel nuts seized are of foreign origin - markings on outer bags also cannot conclusively prove that nuts toughed in bags to be foreign origin especially when such bags available in plenty in market - for want of evidence confiscation penalty set aside - Section 111, 112 and 123 (e) Jitendra Pawar v. Commissioner of Customs - 2003 (156) E.L.T. 622 Smuggled nature of goods - evidence - mere foreign marking not sufficient since at that time gold could be freely importable and was available in the market for sale evidence to prove smuggled nature not found - Section 111, 112 123 (f) Sayed Saleem - 2003 (151) E.L.T. 119 (g) Commissioner of Customs v. M. Banik - 2004 (165) E.L.T. 237 ...page nos. 13 14 (h) Satyanarayan Koti - 2003 (53) RLT 190 page nos. 1 2 (i) Rakesh Gulati - 2002 (150) E.L.T. 473 (T) = 2003 (54) RLT 531 .page nos. 7, 8-10 (j) HIM Electronics - 2003 (159) E.L.T. 761 = 2003 (56) RLT 889 .page nos. 15 17 (3) SEIZURE BY POLICE (a) Jitender Pawar v. Commissioner of Customs - 2003 (156) E.L.T. 622 Delhi Smuggled nature of goods - burden of proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CONFISCATION OF CONVEYANCE NOT SUSTAINABLE (a) Shamim Akhtar Warshi v. Commissioner of Customs - 2003 (161) E.L.T. 943 "Smuggling - confiscation of conveyance - driver or owner of truck - no evidence to their involvement - confiscation set aside - Section 115 of Customs Act." (b) Harshad Shah v. Commissioner of Customs - 2002 (141) E.L.T. 365 "Smuggling - Confiscation of conveyance - confiscation of goods alleged to be smuggled being set aside - confiscation of conveyance not justified - Section 115(2)." (c) Prince Gutaka v. CCE - 2001 (135) E.L.T. 109 (d) Jaykrishna Bala v. Commissioner of Central Excise - 2004 (170) E.L.T. 574 Confiscation of conveyance and imposition of penalty not warranted. (e) Harindar Pal Singh v. C.C., Mumbai - 2003 (160) E.L.T. 358. 3.The learned JDR submitted that the burden to prove had not shifted on the department and they are all smuggled goods. He pointed out to the judgment of the Delhi Bench in Kulbhushan Jain v. C.C., New Delhi - 2003 (154) E.L.T. 169 (Tri - Del.) and that of C.C., Ahmedabad v. R.P. Gangwal - 2004 (163) E.L.T. 391 (Tri - Mumbai); Ballav Daga v. C.C. - 1991 (52) E.L.T. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een established by the appellants. The fact that they did not carry the licit documents were not a ground to hold that the goods are smuggled ones. No doubt the goods carried the foreign marking but that by itself cannot be a ground to hold the goods to be smuggled ones as noted in the judgments cited supra. It is not the finding of the authorities below that the goods were not purchased by them from the local market and they are notified goods. All are non-notified goods and non-notified goods cannot be ordered for absolute confiscation. In view of the large number of judgments cited by the Counsel in which the Tribunal has taken a clear view that confiscation cannot be ordered in respect of non-notified items which have been purchased from the market and it cannot be held that they are smuggled ones. Therefore, we are of the view that in view of the large number of judgments cited on this very point, the appellants succeed in these appeals. The impugned order is set aside and the appeals are allowed with consequential relief. The appellants are entitled to receive the value of the goods as seized and noted in the Mahazar in terms of the judgments already cited and noted supra. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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