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TMI Blog1997 (6) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... belongs to them. On search of it, the copper wire bars, Antimony Ingots, and Metal Sheets were found. Both Anil Mishra and Dau Dayal Agarwal informed, that it was used always to store imported goods. They did not possess any licit documents covering the goods stored in the said Godown. The goods were detained and Godown was sealed for further investigations. In the course of investigation the statements of M/s. Anil Mishra, Shri Surajmal Sunil Agarwal, Pawan Kumar Agarwal Shri Rajendra Agarwal were recorded under Section 108 of the Customs Act. It transpired that Anil Mishra was a Godown Supervisor and he received telephonic instructions from Shri Pawan Kumar Agarwal for storage and removal of goods. They have two godowns out of which one is always locked, were goods without Bills, DC s, Bills of Entry s were always stored and the goods detained on 18-3-1995 were of foreign origin including Antimony and no records are maintained for this purpose. He has written on a loose paper that the Antimony was received from one Rajendrababu around one and half months ago. Surajbhai Sunil Agarwal looks after the accounts of M/s. Pawan Enterprises and M/s. Anand Enterprises, and for this purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 111(d), and penalty should not be imposed under Section 112 of the Customs Act, 1962. It was replied on 16-6-1995 by the Counsel, calling upon to produce the witnesses whose statements are recorded under Section 108 of the Customs Act, or Cross Examination. It is also contended that the cause of action and allegation against the appellants are very vague and cannot be replied, and there is lack of proper opportunity. Section 111(d) is not applicable to the case where the goods are licensable and import is subject to it, and it should be in the negative list as per April, 1992 to March, 1997 Policy. Antimony can be imported freely under OGL. Section 123 to the Customs Act is not applicable. The Customs Authority has to prove the smuggled nature of goods. Burden will not shift to the party. Show cause notice is issued only to create and justify the adjudication proceedings and it has to be withdrawn. When once goods enter Indian territory and merges (with the) landmass, it ceases to be imported goods. Antimony cannot be called as smuggled goods. The enquiry at Pawan Enterprises is a fishing one. Other goods were also stored which are covered under the adjudication procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Bom.) Santosh Gupta v. Union of India are cited. Antimony purchased from people who recover, for the market. 5. The ld. DR Shri Gurdeep Singh has contended that Antimony is in the form of ingots. There is no documentary evidence regarding the source of acquisition. In the course of the enquiry, appellants have not given any single instance of purchase and source of acquisition - 1983 (13) E.L.T. 1486 (S.C.) is cited. When Customs authorities inform the result of the enquiry, which goes against the claim of the appellant, the burden is shifted by falsifying the claim of the party. The Bombay High Court decision should be seen in the light of the above. OGL Ipso Facto does not mean goods should not be confiscated under Section 111(d) of the Customs Act. Invoking of the said provisions covers number of prohibitions to the goods to be landed in approved Customs area, clearance as per the procedure and on payment of duty. In the precedent decision of the Bench there was evidence of acquisition of goods and its source. It is not so in this case, so factually distinguishable. Computer Sheet, cash payment for purchasers are not substaintiated. The Departmental enquiry under letters at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 8-6-1995 another reply is given informing that the company received a sample of imported Antimony Metal for analysis from M/s. Amco Batteries Ltd., Banglore on 25-5-1995 and it was carried out in the laboratory with the following result. AS : 0.36%, PO : 2.86%, NI : 0.206%, SE less than 0.001%, HG 0.10%, SB 96.42%, (c) The reply dated 25-5-1995 of Chloride Industries Ltd. with reference to the letter dated 3-3-1995 of the Assistant Collector of Customs shows that the Company is one of the leading manufacturers of lead acid automatic storage batteries for which Antimony Metal is used, and they import from China and Thailand as it is not available in India. It is usually in slab form. They consume one container lead (20 MT) per quarter in their Chinchwad factory. (d) The reply of the India Lead Zinc Information Centre to the Assistant Collector of Customs shows that Antimony Metal in Ingots and slab are not produced in the country presently, earlier star metals in Bombay were producing from imported concentrates. Now Antimony Metal is imported from China, Bolivia Thailand. It is usually imported in two purities of 99.65% minimum and 99.85% maximum. MMTC, New Delhi imports Antimon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Antimony Ingots found in the small godown of Pawan Enterprises is not an imported one, but legally purchased by Rajendra Agarwal and he has neither imported the above goods, nor purchased an imported Antimony. The ownership of the same is admitted. So also the storing in the small godown. It is to be seen whether the said goods are imported or not. 11. In the absence of Antimony being notified under Section 123 or under Chapter IV-A of the Customs Act, it is for the Customs Department to prove that the Antimony Ingots are smuggled ones. This is admitted by the adjudicating authority in page 12 of the order that Though the goods involved is not covered under Section 123 of the Customs Act, it is an acceptable proposition that as a wholesale dealer in metals the appellant should possess some proof to show the licit import made or the acquisition of the goods in India . In view of this position, it is to be seen whether the Respondent has discharged the burden of showing smuggled nature of the goods involved in this case that is goods are of foreign origin and imported from abroad. The information received by the Customs Authorities is that Agarwals are dealing in imported non-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the information they had. The appellant has admitted the ownership and is supported by a document. The department has failed to substantiate that the Antimony in this case is definitely of foreign origin and imported unauthorisedly into India. The facts and circumstances of the case are such that the appellants is entitled to the benefit of doubt. The contentions of the appellant gains weight, and it is fit to be accepted. 12. Now coming to the rulings cited in this case. (a) 1997 (29) ETR 30 in the case of Pawan Enterprises and two others v. Commissioner of Customs (P) Mumbai cannot be applied to this case as the facts are different. (b) 1997 (91) E.L.T. 63 (T) in the case of Commissioner of Central Excise, Allahabad v. Anup Kumar Agarwal regarding the burden of proof it is held that smuggling goods namely Olive Oil not being notified under Section 123 of the Customs Act, it is for the Customs Department to prove smuggled nature of goods. In the absence of any corroboration to the statement of accused onus is not discharged. Goods permissible under OGL for import and it is freely available in the market. It is held that the confiscation of goods is not sustainable (para ..... X X X X Extracts X X X X X X X X Extracts X X X X
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