2016 (4) TMI 277 - AT - Customs

Burden on whom to establish that the goods are smuggled into the country - Seized certain quantities of Canvas Shoes and Chappals of foreign origin - licit import of the seized goods - Revenue contended that when marks and numbers on the seized goods did not tally with the documents furnished by the Respondent, then the onus is shifted to the respondent herein to establish the licit possession of the goods - Held that - similar goods are being imported into India where marks and numbers are not specified in the invoices/packing list and accordingly can not be described in the Bill of Entry. Once such goods are cleared into the country without raising any objection, regarding brand name etc., then at the time of interception it cannot be seized on the grounds that the goods are of smuggled nature. The goods seized are also not notified under Section 123 of the Customs Act, 1962 and no investigation is conducted by the Revenue to indicate that the goods seized in the present proceedings were of smuggled nature. When goods are not notified under Section 123 of the Customs Act, 1962, then the burden is on the Revenue to establish that the goods are smuggled into the country. - Decided against the revenue

Issues involved: Appeal against Order-in-Appeal regarding seizure of goods at Sealdah Railway Station, discrepancy in markings on seized goods and documents, onus of establishing licit possession/importation, applicability of Section 123 of the Customs Act, 1962, burden of proof on Revenue in case of non-notified goods.

Analysis:
1. Seizure of Goods and Discrepancy in Markings: The Revenue filed an appeal against the Order-in-Appeal dated 28.03.2011, challenging the dropping of proceedings against the Respondent concerning the seizure of Canvas Shoes and Chappals of foreign origin at Sealdah Railway Station. The Revenue argued that the markings on the seized goods did not match the documents produced by the Respondent, shifting the onus to establish licit possession. However, the Respondent contended that the goods were not notified under Section 123 of the Customs Act, 1962, and even if markings did not match, it did not imply smuggling. The Adjudicating Authority had dropped the proceedings, leading to the appeal.

2. Burden of Proof and Applicability of Section 123: The Tribunal examined the case records and noted that the Respondent had provided Bills of Entry, packing list, and invoices for the imported goods. It was observed that similar goods without specific markings were being imported into India, and once cleared without objections, they could not be seized later on smuggling grounds. The Tribunal emphasized that the seized goods were not notified under Section 123 of the Customs Act, 1962, placing the burden on the Revenue to prove smuggling. As per the Tribunal's analysis, in the absence of evidence indicating smuggling and non-notification under Section 123, the Revenue had the onus to establish illicit importation, which they failed to do in this case.

3. Judgment and Dismissal of Appeal: After hearing both parties and reviewing the case details, the Tribunal found no fault in the Order-in-Appeal passed by the First Appellate Authority. The Tribunal upheld the decision to dismiss the Revenue's appeal, emphasizing that when goods are not notified under Section 123 of the Customs Act, 1962, the Revenue must prove smuggling, which was not established in this instance. Therefore, the Tribunal concluded by dismissing the Revenue's appeal and affirming the Order-in-Appeal dated 28.03.2011.

This detailed analysis of the judgment highlights the key issues raised, arguments presented by both parties, the Tribunal's examination of the case records, and the ultimate decision regarding the seizure of goods, discrepancy in markings, burden of proof, and the applicability of Section 123 of the Customs Act, 1962.

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