2011 (4) TMI 1144 - AT - Customs

Seizure smuggled goods Held that - no mark of country of origin on the goods and it is only on the basis of trade opinion of M/s. Bharat Trading Co. that the department alleges that the goods are of third country origin, Since the goods are not covered by Section 123 of Customs Act, 1962, the burden of proving that the same are smuggled is on the department, which has not been discharged, confiscation of the goods and imposition of penalty on the appellant is not sustainable, appeal is allowed

Summary

Issues:
1. Seizure of goods at Lucknow Railway Station
2. Allegation of goods being of third country origin
3. Confiscation of goods and imposition of penalty

Analysis:
1. The case involved the seizure of two parcels at Lucknow Railway Station containing copper scrap in the form of old radiators. The goods were alleged to be of third country origin and illicitly imported from Nepal. The consignor claimed the goods were of Indian origin purchased from specific suppliers in Siliguri. The Assistant Commissioner ordered the absolute confiscation of the goods and imposed a penalty on the consignor.

2. The appellant contested the seizure, arguing that there was no conclusive evidence proving the goods were of third country origin. The department's claim was based on an opinion from a trading company, which stated the goods "appeared" to be of third country origin. The burden of proof, as per the Customs Act, was on the department to establish the smuggled origin of the goods, which they failed to do. The appellant's suppliers denying supplying the goods did not conclusively prove the goods were illicitly imported from Nepal.

3. Upon careful consideration, the Tribunal found that the trade opinion provided was not conclusive, and the department failed to provide substantial evidence supporting the claim of third country origin. The absence of country of origin markings on the goods further weakened the department's case. The Tribunal held that the impugned order of confiscation and penalty imposition was not sustainable. Consequently, the order was set aside, and the appeal was allowed, favoring the appellant.

Conclusion:
The Tribunal ruled in favor of the appellant, setting aside the order of confiscation and penalty imposition due to insufficient evidence proving the goods were of third country origin. The burden of proof was not discharged by the department, leading to the appeal being allowed in favor of the consignor.