9911796707
TMI Blog1999 (10) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... learned JDR appearing for the respondent raised a preliminary objection that the appellant cannot claim the goods inasmuch as the owner of the goods had not come forward before the adjudicating authority and has claimed the same. He however, agrees that the appellant being transporter was custodian of the goods and it was from their possession that the garments in question were seized. He submits that as the appellants are not the owner of the goods, they cannot challenge the confiscability of the same. 3. Shri K.K. Bhattachajee, learned Consultant appearing for the appellant submits that the goods have been seized from the possession of the appellants and they being the custodian of the goods have a legal right to claim the release of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was not warranted. Otherwise also the goods have been seized from the possession of the appellant, who may not be the owner of the goods but being a transporter, was the custodian of the goods in question, he has a legal right to challenge the confiscability of the same. As such, I overrule the preliminary objection raised by the learned JDR. 5. As regards the merits of the case, Shri Bhattacharjee submits that though they had made a detailed reply to the show cause notice raising a number of pleas, the same has not been taken into consideration by the adjudicating authority. He submits that vide their reply made before the Commissioner, Customs, they have submitted that such type of used and old garments are openly sold out in dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on record to show the legal acquisition and possession of the garments in question have miserably failed in discharing this onus shifted to them. He also submits that an inquiry made by the officers after seizure of the goods, the consignor as well as consignee were found to be fictitious firms or persons. As such, he submits that this fact strengthens the Department s case that the goods in question are of tainted character. In support of his above submission, he relied upon the Tribunal s judgment reported in 1992 (59). E.L.T. 150 (T) and 1994 (69) E.L.T. 541 (T). 8. I have carefully considered the submissions made from both the sides and have gone through the impugned order. The appellant in their reply to the show cause notice has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in case of non-notified items, the burden to prove is on the Revenue and is required to be discharged by production of affirmative and legal evidence. Merely because the garments in question carried foreign mark stickers by itself will not shift the burden to the appellant to prove that the goods are not smuggled especially when the appellants have taken a stand that such type of goods are being manufactured and sold in Delhi and such stand has not been rebutted by the Department. As such, I find that the Revenue has not been able to prove conclusively that the items in question have been smuggled into India. As such, I set aside the impugned order and allow the appeal with consequential relief to the appellant. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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