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TMI Blog1989 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... same on payment of a fine of Rs. 1 lac and penalty of Rs. 1 lac on Shri P.C. Agarwal, Prop. of M/s. Standard Chemicals and Biological Manufacturing Co., Nagpur. Duty at the appropriate rate was also payable. 2. In this appeal, the appellants have stated that persuant to a tender notice floated by the Indian Turpentine and Rosin Co. Ltd. on 7-6-1984 inviting tender for supply of 20 kg of Palladium Chloride, the appellants procured the same from Shri Vijay Kumar Chauhan and had the 10 kgs of Palladium Chloride delivered. The Central Excise staff visited the factory of M/s. Indian Turpentine and Rosin Company Ltd. The business and residential premises of the appellants were searched but no contraband or incriminating document was found. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department. 5. He also referred to the statement of Shri P.C. Aggarwal dated 23-5-1985 who has stated that the product was supplied to the firm thro M/s. Orient Chemicals, Bombay and it was not of foreign origin. 6. The following case laws were cited. S.N. Sultan and Shri Abdullah - 1984 ECR 2296 on applicability of Section 123 Customs Act - on Burden of Proof Order A-159/85-NRB dated 4-4-1985 and Order A-318/85-NRB dated 30-9-1985. 7. The Ld. S.D.R. Smt. Dolly Saxena in her rejoinder pointed out that the supplier, Shri Vijay Kumar was not produced by the appellant for cross-examination, which itself goes to prove that the appellant had prior knowledge of the imported goods and was not able to produce proof of licit import and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the hearing was found to be in containers, and it is a matter of doubt whether this alone will provide sufficient proof that the goods were brought into the country through illegal means and are therefore liable to confiscation and chargeable to duty. Moreover the goods are not notified under Section 123 of the Customs Act and the burden of proving that they are not smuggled does not rest with the appellants, neither is it a notified item under Chapter IV-A of the Customs Act. The appellants have further maintained that this is not a banned item under the I.T.C. Policy. The Collector in his order does not make any allegation on the point of import being banned. The whole issue has been thrashed out on the basis that the labels affixed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any plausible findings except to the fact that the containers bore foreign markings and the original supplier was not produced for interrogation. More so is the presumptions finding not tenable, when the goods are not notified under Section 123. The citations quoted by the Ld. Consultant 1984 ECR 2296 CEGAT - Shri S.N. Sarkar and Shri Abdul Lateef v. Collector of Central Excise, New Delhi relating to burden of proof - the decision that the goods admittedly are neither notified goods under Section 123 of the Customs Act nor covered by Chapter IV-A, of the Act. The above circumstances alone would not justify a presumption as to their smuggled nature. Therefore the Collector was not justified in placing the burden on the appellants to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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