2009 (8) TMI 1009 - AT - Customs

Summary

Issues:
- Appeal against impugned Orders passed by the Commissioner (Appeals) regarding PVC Resins of German origin found in the factory premises.
- Burden of proof on Revenue to show PVC Resins are smuggled into India.
- Verification of documents showing PVC Resins of Korean origin supplied by the Respondents.
- Application of Section 123 of the Customs Act, 1962 to determine liability for Customs Duty.
- Reliance on the decision of the Hon'ble Calcutta High Court in a similar case.

The Appeals were filed by the Revenue against Orders passed by the Commissioner (Appeals) concerning the presence of PVC Resins of German origin in the factory premises of the Respondents. The Revenue alleged that the PVC Resins were smuggled into India, making the goods liable for confiscation and the Appellants responsible for paying Customs Duty. However, the Commissioner (Appeals) held that since PVC Resins were not notified goods under Section 123 of the Customs Act, the burden of proof rested with the Revenue to establish smuggling, which they failed to do, resulting in the dismissal of the Appeals.

The Revenue contended that the Respondents claimed the PVC Resins were purchased from Delhi, supported by certain documents. Upon verification, it was discovered that the suppliers actually provided PVC Resins of Korean origin, not German. The Revenue argued that as the Respondents failed to demonstrate the lawful import of German origin PVC Resins, the impugned Order was unsustainable.

In response, the Respondents argued that since PVC Resins were neither notified goods nor restricted items under Section 123 of the Customs Act, the burden of proving smuggling rested with the Revenue. They cited a decision by the Hon'ble Calcutta High Court in a similar case to support their position that the burden of proof lies with the Revenue in cases involving non-notified goods.

The judgment emphasized that as PVC Resins were not classified as notified goods or restricted items, the onus was on the Revenue to establish that the goods were smuggled into India. Referring to the decision of the Hon'ble Calcutta High Court, it clarified the distinction between burden of proof and onus, highlighting that the burden of proof always lies with the party required to prove a fact. As the Revenue failed to discharge the burden of proving smuggling, the impugned Orders were upheld, and the Appeals filed by the Revenue were dismissed.