1985 (3) TMI 273 - AT - Customs

Summary

Issues:
1. Confiscation of video cassettes of foreign origin.
2. Imposition of penalty under Customs Act, 1962.
3. Burden of proof on revenue to establish smuggling.

Analysis:
1. The case involved the confiscation of 151 video cassettes of foreign origin from the premises of M/s. Gurbachans Radios, Dimapur. The appellant, not present during the search, claimed the cassettes were received on rental basis and not for sale. The Additional Collector of Customs confiscated the cassettes under Section 111(d) of the Customs Act, 1962, and imposed a penalty of Rs. 500 under Section 112. The appellant appealed challenging the confiscation and penalty.

2. The appellant's advocate argued that the onus of proof was on the revenue to establish the cassettes were smuggled. Referring to Notification No. 205/84, the advocate contended that the onus shifted to the person post-issuance, not before. Citing a judgment, it was argued that the revenue failed to prove smuggling, and the cassettes should be released, and the penalty quashed. The advocate highlighted discrepancies in the revenue's case and emphasized the lack of evidence supporting smuggling.

3. The Junior Departmental Representative contended that the Baggage Rule did not aid the appellant and linked it with Section 111(o) of the Customs Act. The representative argued that the cassettes were consumable items, banned for import, and lacked correlation with films. The advocate for the appellant countered, stating Section 111(d) was invoked, not Section 111(o), and appealed for the acceptance of the appeal.

4. The Member (J) observed that the revenue failed to discharge its initial burden of proof under Section 123 of the Customs Act. The appellant provided documentary evidence of legal acquisition, while the revenue lacked evidence of smuggling. Drawing parallels with a precedent, the Member (J) accepted the appeal, ordering the release of cassettes and cancellation of the penalty. The revenue was directed to refund the penalty within three months.

This comprehensive analysis covers the issues of confiscation, penalty imposition, and burden of proof in the legal judgment delivered by the Appellate Tribunal CEGAT CALCUTTA.