2005 (5) TMI 462 - Commissioner - Customs

Confiscation - Misdeclaration in Bill of Entry - Assessment - Re-opening of assessment - Confiscation - Vehicle imported - Penalty

Summary

Issues:
1. Confiscation of a motor cycle based on incorrect chassis number.
2. Allegation of selling the motor cycle in violation of public notice.
3. Burden of proof on the department for establishing illegal importation.
4. Imposition of penalties on individuals involved.

Confiscation based on incorrect chassis number:
The case involved the seizure of a motor cycle due to discrepancies in the chassis number mentioned in the bill of entry and the actual physical examination. The appellant argued that the mistake was due to improper checking during importation. The judge noted that the engine number matched, suggesting an error in the chassis number. It was concluded that the motor cycle was legally imported, as the mistake could be attributed to errors by customs and the importer during examination.

Allegation of selling in violation of public notice:
The appellant was accused of selling the motor cycle within 2 years of import, against a public notice. However, it was clarified that the motor cycle remained in the importer's name, and the alleged transfer had not been completed as registration papers were unchanged. Thus, there was no evidence of a breach of the public notice, and confiscation on this ground was deemed unjustified.

Burden of proof on illegal importation:
Regarding the burden of proof for illegal importation of non-notified goods, the department failed to establish that the motor cycle was of foreign origin or illegally imported. The judge emphasized that the burden of proof lies with the department, and failure to produce evidence meant the goods could not be confiscated. Instructions from the Board highlighted the department's obligation to prove illegal importation, not shift the burden to the importer.

Imposition of penalties on individuals:
Since the motor cycle was deemed legally imported, penalties imposed on individuals involved were set aside. The judge found no justification for penalties without proving knowledge of illegal importation. The absence of discussion on mens rea led to the penalties being overturned, and all appeals were accepted, with the motor cycle released to the present owner.

In conclusion, the judgment revolved around the legality of the motor cycle's importation, the alleged violation of selling restrictions, the burden of proof for illegal importation, and the imposition of penalties on involved parties. The decision favored the appellants, emphasizing proper assessment, lack of evidence for violations, and the department's responsibility to prove illegal activities.