2005 (1) TMI 282 - AT - Customs

Summary

Issues Involved:
1. Confiscation of cigarettes of Bangladeshi origin.
2. Confiscation and redemption of lorry.
3. Imposition of penalties on appellants.
4. Determination of whether the goods were smuggled.
5. Burden of proof regarding the smuggled nature of goods.
6. Applicability of Section 123 of the Customs Act.
7. Reimbursement of the value of the seized goods.

Detailed Analysis:

1. Confiscation of cigarettes of Bangladeshi origin:
The Commissioner of Customs ordered the confiscation of 12,80,000 cigarettes of Bangladeshi origin seized from a truck and 13,69,250 cigarettes of Bangladeshi origin seized from a godown. The appellants argued that the goods were non-specified and freely available in the market, thus not smuggled, relying on several judgments to support their contention.

2. Confiscation and redemption of lorry:
The lorry bearing No. KA 06 8378 was confiscated under Section 115(2) of the Customs Act but was granted redemption to one individual on payment of a fine of Rs. 50,000 under Section 125 of the Customs Act. This individual did not appeal.

3. Imposition of penalties on appellants:
Penalties of Rs. 8 lakhs on one appellant and Rs. 1.50 lakhs on another were imposed under Section 112(b) of the Customs Act. The appellants contended that no penalty was leviable, citing multiple judgments that supported their stance.

4. Determination of whether the goods were smuggled:
The appellants contended that the mere fact of foreign origin does not amount to the goods being smuggled. They argued that the burden of proof was on the department to show that the goods were smuggled, which had not been discharged. The Tribunal considered the appellants' argument that the goods were purchased from the open market and were freely available for sale.

5. Burden of proof regarding the smuggled nature of goods:
The Tribunal noted that the burden of proving that the goods were smuggled lay with the Revenue. The Tribunal cited several cases where it was held that the mere marking of foreign origin does not render the goods smuggled and that the burden of proof lies with the department, especially when the goods are non-notified.

6. Applicability of Section 123 of the Customs Act:
The Tribunal referenced the judgment in the case of Naveed Ahmed Khan, which held that Section 123 of the Customs Act is inapplicable when goods are seized by the police and handed over to the Customs Department. The burden of proving that the goods are smuggled remained with the Revenue.

7. Reimbursement of the value of the seized goods:
The Tribunal considered the appellants' submission that they were entitled to the reimbursement of the value of the goods as noted in the mahazar. However, the appeals only sought the setting aside of penalties and did not include a prayer for claiming the goods or their value. The Tribunal allowed the appeals to the extent of setting aside the penalties imposed, modifying the impugned order accordingly.

Conclusion:
The Tribunal allowed the appellants' appeals by setting aside the penalties imposed, following the ratio of the cited judgments. The appeals were allowed to the extent of setting aside the penalties, and the impugned order was modified to that extent. The Tribunal did not address the reimbursement of the value of the goods due to the lack of a specific prayer for such relief in the appeals.