2008 (9) TMI 496 - AT - Customs

Burden of proof- As per the ingredients of section 123 of custom act, onus of proof not discharged by revenue. In the light of the decision of Commissioner of Customs (Prev.), W.B., Kolkata v. Raj Kumar Jaiswal - 2006 (204) E.L.T. 561 (Cal.) Held that- In view of failure of the transaction to meet the tests of law, the Appellant is entitled to the benefits of doubt under Section 123 of the Customs Act, 1962 and the Appeal should succeed. Accordingly the impugned order is set aside and Appeal is allowed.

Summary

Issues:
1. Seizure of goods in transit and subsequent examination by Revenue Authorities.
2. Allegations of goods being of foreign origin and involvement in smuggling.
3. Compliance with Section 123 of the Customs Act, 1962 regarding proof of foreign origin.

Analysis:

Issue 1: Seizure of goods in transit and subsequent examination by Revenue Authorities
The Appellant's Counsel argued that the goods were seized in transit from Murshidabad to Kolkata by Revenue Authorities. Various statements were recorded, and the goods were taken to a different place for examination, as indicated by the seizure memo. However, there was no mention of identifiable markings or evidence of foreign origin. The Authorities failed to send the material for laboratory analysis to determine discrepancies between Indian and Foreign Standards. Moreover, there was no evidence to establish the manufacturing origin of the goods or the exporter, raising doubts about the allegations of smuggling and foreign origin.

Issue 2: Allegations of goods being of foreign origin and involvement in smuggling
The Revenue Representative contended that the goods were recovered in broad daylight by intelligence, with no evidence provided by the Appellant during interception. The subsequent evidence of purchasing the goods from an Indian source was deemed unreliable. The practice of using certain documents to claim non-foreign origin of goods was criticized. The Revenue argued that the orders passed after a thorough inquiry should not be overturned.

Issue 3: Compliance with Section 123 of the Customs Act, 1962 regarding proof of foreign origin
Upon hearing both sides and examining the record, the Tribunal considered the requirements of Section 123 of the Customs Act, 1962. The Appellant's Counsel highlighted that the Revenue failed to discharge the onus of proof regarding the nature of the goods being of foreign origin. Without evidence such as chemical reports, foreign markings, exporter details, or country of origin, the burden of proof did not shift to the Appellant. Citing relevant case law, the Tribunal concluded that the transaction did not meet the legal tests of Section 123, entitling the Appellant to the benefit of doubt. Consequently, the impugned order was set aside, the Appeal was allowed, and any consequential relief was granted to the Appellant in accordance with the law.

This judgment emphasizes the importance of meeting legal standards and burden of proof in cases involving allegations of foreign origin and smuggling, ultimately leading to the Appellant's success based on the failure to establish compliance with Section 123 of the Customs Act, 1962.