2013 (4) TMI 60 - AT - Customs

Smuggling goods Confiscation Appellant/Accused is found with carrying two tractors loaded with battery scrap. Department seized the battery scrap with a view that they are smuggled goods. Notice also proposed imposition of penalty. Additional Commissioner vide his order confirmed the confiscation also ordered for confiscation of the truck in terms of Section 115(2) of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine. Said order of Additional Commissioner was challenged by the present appellants before Commissioner (Appeals), who upheld the same, hence the present appeal is filed before Tribunal. Held that - Tribunal finds that there is no direct evidence on record showing smuggling of battery scrap from Nepal. The Revenue is solely relying upon the statement of who is a co-accused tribunal also finds that battery scrap is non-notified item in terms of provisions of Section 123 of the Customs Act. As such, the onus to show that the same was smuggled lies very heavily upon the Revenue and is required to be discharged by production of sufficient and tangible evidence. Inasmuch as the confiscation stand set aside, there is no justification for imposition of penalties on both the appellants.

Summary

Issues:
Smuggling of battery scrap from Nepal, reliance on statement of co-accused, sufficiency of evidence, confiscation of goods and truck, imposition of penalties.

Smuggling of Battery Scrap from Nepal:
The case revolved around the interception of a truck loaded with scrap batteries, suspected to be smuggled due to markings indicating foreign origin. Statements of individuals involved suggested the goods were brought from Nepal, but lack of direct evidence raised doubts. The Tribunal emphasized that the Revenue failed to establish the scrap as smuggled goods, solely relying on the driver's statement, considered hearsay evidence. The statement of a co-accused cannot be the sole basis for a finding, requiring corroboration with other evidence. The Tribunal noted discrepancies in statements and the absence of concrete proof of smuggling from Nepal, leading to the setting aside of confiscation orders.

Reliance on Statement of Co-accused:
The judgment highlighted the importance of corroborative evidence in cases involving co-accused statements. It noted the denial by another accused regarding bringing goods from Nepal, casting doubt on the credibility of the driver's statement. The Tribunal emphasized that the mere timing of recording statements does not validate one over the other, especially when exculpatory evidence exists. The Commissioner's preference for the driver's statement was criticized for overlooking conflicting accounts and failing to consider the dealer's legitimate business activities.

Sufficiency of Evidence:
The Tribunal underscored the Revenue's burden to prove smuggling of non-notified items like battery scrap. It stressed the need for tangible evidence demonstrating foreign origin and illegal entry into India. Relying solely on the driver's statement without affirmative proof was deemed insufficient. The judgment highlighted the lack of direct evidence linking the goods to smuggling, leading to the rejection of confiscation orders for both the scrap and the truck.

Confiscation of Goods and Truck:
The Tribunal set aside the lower authorities' orders of absolute confiscation of the scrap and the truck. Due to the absence of conclusive evidence of smuggling, the confiscation was deemed unjustified. The judgment emphasized the necessity of establishing the illicit nature of goods before confiscation could be warranted. Consequently, the Tribunal overturned the confiscation orders, providing consequential relief to the appellants.

Imposition of Penalties:
With the confiscation orders annulled, the Tribunal found no basis for imposing penalties on the appellants. The lack of evidence supporting smuggling allegations led to the conclusion that penalties were unjustified. Therefore, the appeals were allowed, and penalties on the appellants were revoked, aligning with the setting aside of confiscation orders.

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