2012 (10) TMI 593 - AT - Customs

Confiscation of the goods under seizure - demand against them while relying upon Notification No.9/96 - Held that - Goods involved in this case is rain coats and trousers. The goods are not notified under section 123 of Customs Act, 1962. Thus that once the goods are not notified, the onus lies on the department to show that the goods are smuggled goods. The appellant produced the bill for the said goods i.e. cash memo No.384 dated 30.06.2001 and 22.09.2001. The show cause notice in this case was issued on 12.10.2001. The applicant produced the cash memo prior to issue of show cause notice. Nothing prevented the department to carry out further investigation to check the veracity of the documents - As the department could not discharge the onus to show the smuggled nature of the goods. In these circumstances the Commissioner s order is not sustainable and is accordingly set aside and appeals in the case of above three appellants are allowed with consequential relief - in favour of assessee.

Summary

Issues:
1. Confiscation of goods and imposition of penalties under the Customs Act, 1962.
2. Applicability of Notification No.9/96 regarding exported goods.
3. Burden of proof on the department for proving goods as smuggled.
4. Reliance on previous judgments related to smuggling of gold and silver.
5. Production of cash memos by the appellants before the lower authorities.

Analysis:

Issue 1: Confiscation of goods and imposition of penalties under the Customs Act, 1962
The appellants filed appeals against the Order-in-Appeal upholding the confiscation of goods and penalties imposed by the lower adjudicating authority. The lower authorities ordered the absolute confiscation of various items and imposed penalties of Rs. 20,000 each against the appellants under section 112 of the Customs Act, 1962. The appellants challenged these decisions, leading to the appeals before the Commissioner (Appeals) and subsequently before the Tribunal.

Issue 2: Applicability of Notification No.9/96 regarding exported goods
The contention raised was that the lower adjudicating authority relied on Notification No.9/96, which treats goods exported to countries other than India from Nepal as prohibited. The appellants argued that since the goods were not from Nepal and were of third country origin, the notification should not apply to their case. This raised a question regarding the correct interpretation and application of the notification in the context of the seized goods.

Issue 3: Burden of proof on the department for proving goods as smuggled
The appellants argued that since the goods were not covered under section 123 of the Customs Act, 1962, the burden of proving them as smuggled goods rested on the department. They contended that the department failed to discharge this burden and that the cases cited by the Commissioner (Appeals) related to smuggling of gold and silver, which were not applicable to their case. The issue of onus in proving the nature of the goods formed a crucial aspect of the legal dispute.

Issue 4: Reliance on previous judgments related to smuggling of gold and silver
The appellants challenged the reliance placed on previous judgments concerning the smuggling of gold and silver by the Commissioner (Appeals). They argued that these judgments were not relevant to their case involving raincoats, trousers, and wristwatch chains. This issue highlighted the importance of precedent and its application to specific circumstances in customs-related cases.

Issue 5: Production of cash memos by the appellants before the lower authorities
The appellants produced cash memos relating to the purchase of the seized goods before the lower adjudicating authority. They contended that the authority did not give any finding on these documents. The Tribunal noted that the appellants had provided the cash memos before the issuance of the show cause notice, indicating a proactive approach in presenting evidence. The department failed to challenge the authenticity of these documents, raising questions about the sufficiency of evidence considered by the authorities.

In conclusion, the Tribunal found in favor of the appellants, setting aside the Commissioner's order and allowing the appeals with consequential relief. The decision emphasized the department's failure to prove the smuggled nature of the goods, the importance of documentary evidence, and the correct application of legal principles in customs cases.