TMI Blog2004 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... AT dated 31-1-2003 and also did not appear before C.C. (Appeals). The C.C. (Appeals) vide Order-in-Appeal No. 9/2004/APTS, dated 24-2-2004, upheld the order as regards confiscation of wrist watches in appeal No. S/49-01/2004 TS worth Rs. 1,39,000/- and in case of appeal No. S/49-2/2004 TS worth Rs. 1,44,000/- and ordered to be released on payment of fine of Rs. 30,000/- and Rs. 35,000/- respectively. The remaining goods were found to be non-notified and the Order of confiscation of the same was set aside. Personal penalty was reduced from Rs. 14,000/- to Rs. 5,000/- and from Rs. 25,000/- to Rs. 10,000/-. 3. Revenue is aggrieved by the order on the grounds - (i) that the Commissioner (Appeals) has erred in setting aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the admissible free allowances available to the passengers are also eligible for sale and as such they are never covered by any licit documents/duty paying challans. Thus, the respondent also contradicted himself and changed his earlier statement by filing written submission. The conclusion drawn by the Commissioner (Appeals) could have been appreciated if the Department had failed in its duty even after Shri Dinesh Raysoni disclosed such information to the Department. In such circumstances, the Hon'ble Supreme Court in paragraph 31 of its judgment in the case of Collector of Customs, Madras v. D. Bhoormal, [1983 (13) E.L.T. 1546 (S.C.)], have held that "since it is exceedingly difficult, if not absolutely impossible for the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpress provision in the law placing onus on the Department to prove that the goods are smuggled in respect of the non-notified goods under Section 123 of the Customs Act, 1962. It is only being construed that since the onus of proof is on the owner in respect of notified goods, in respect of non-notified goods, the onus is on the Department. The scope and nature of the onus cast by Section 123 though indirectly has to be interpreted by taking into account facts and circumstances of individual cases. This view is supported by the Apex Court's verdict in D. Bhoormal's case cited in the earlier paragraph. (v) The Commissioner (Appeals) failed to appreciate the facts and circumstances of the case while examining the burden of proof and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitial burden of proof of smuggled nature of the goods has been discharged by the Department. (ix) The appellant (i.e. Revenue) hereinabove is filing this appeal before the Hon'ble Tribunal for correct determination of the following points of law arising out of the above said Order-in-Appeal passed by the Commissioner of Customs (Appeals), Mumbai. (a) Whether after taking into consideration the facts stated above and also the fact that there is no express provision under Section 123 of the Customs Act, 1962 regarding the burden of proof in respect of non-notified goods, the said Order of Commissioner of Customs (Appeals) is legally correct or proper? (b) Whether under the facts and circumstances of the case, the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. But it may be assumed that the principle underlying the said section of universal application. Under that section, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This came in Shanbhu Nath Mehra v. State of Ajmer, 1956 S.C.R. 199 after considering the earlier Privy Council decision in the interpretation of Section 106 of the Evidence Act observed at Page 204 (of S.C.R.) thus -"The Section cannot be used to undermine the well established rule of law that save in a very exceptional class of cases, the burden is on the production and never shifts of Section 106 of the Evidence Act is applied, then by availing of the fundamental principles of criminal juries prudence must equall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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