2021 (9) TMI 1401 - AT - Customs

Absolute Confiscation of Cigarettes - levy of penalty - non-notified goods or not - valid import or not - It has been alleged by the department that the appellant could not produce the documents, evidencing legal import of the cigarettes found in the said premises - HELD THAT - Both the authorities below in their respective orders have held that the goods in question are not notified under Section 123 ibid and accordingly, discharging the burden of proof regarding licit acquisition of cigarettes were entirely lies with the appellants and since, no credible evidences were produced, confirmation of the adjudged demands are in conformity with the statutory provisions. However, it is found that the Central Government vide Notification No. 204/84-Customs dated 20.07.1984 had specified cigarettes as the notified goods for the purpose of sub-section (2) of Section 123 ibid. Since, the disputed goods are notified in the official gazette way back in 1994 and such goods have not been deleted from the list of notified goods through any notification, the scenario of entire exercise undertaken by the department for investigation and confirmation of the adjudged demands will be different inasmuch as under the said statutory provisions, the burden of proving that the goods are not smuggled goods shall be cast on the person from whose possession the same were seized. It is an admitted fact that the adjudication as well as the impugned orders have not considered the notification dated 20.07.1984. The matter should go back to the original authority for consideration of the notification dated 20.07.1984, proper application of the same to the facts of the present case and thereafter, to decide the cases afresh - Appeal allowed by way of remand.

Summary

Issues:
1. Seizure and confiscation of imported cigarettes.
2. Burden of proof regarding licit acquisition of cigarettes.
3. Notification specifying cigarettes as notified goods.
4. Consideration of notification dated 20.07.1984.
5. Remand of the matter for fact-finding.

Analysis:
The case involves the seizure and confiscation of imported cigarettes valued at Rs.29,59,200/- based on specific intelligence. The appellant claimed ownership of the goods but failed to produce documents evidencing legal import. Show cause proceedings were initiated, resulting in the absolute confiscation of cigarettes and imposition of penalties. The Commissioner (Appeals) upheld the decision, leading to the appeals before the Tribunal.

Both authorities held that the burden of proof regarding licit acquisition of cigarettes lay with the appellants. However, the Tribunal noted that cigarettes were specified as notified goods under a 1984 notification. As the goods were not deleted from the list of notified goods, the burden of proving they were not smuggled goods should be on the person from whose possession they were seized. The failure to consider the 1984 notification led the Tribunal to remand the matter for proper application and fresh adjudication.

The Tribunal set aside the impugned order and remanded the case to the original authority for fact-finding on the notified goods involved. No opinion was expressed on the merits of the case, and the documents submitted by the appellants were not examined. The original authority was directed to examine the evidence, consider submissions, and adjudicate afresh, ensuring the appellants are granted a personal hearing.

In conclusion, the appeals were allowed by way of remand, emphasizing the need for a thorough examination of the notified goods and proper application of the relevant notification. The case highlights the importance of considering all statutory provisions and notifications in customs matters to ensure a fair and just adjudication process.