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TMI Blog2004 (12) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeals have not been listed for hearing. 2. The appellants have contended that they have purchased these goods from open market in New Rajpatra Market in Delhi. They pointed out that the department has asked the DRI to verify this point and the DRI have not answered to them. Therefore, their plea that it was purchased from New Rajpatra Market in Bunty s brother s shop should be accepted. It is also pointed out that the items are not notified items and its confiscation is not valid, as they have been purchased from the open market. Their further plea is that merely because the goods have foreign marking that by itself cannot be held that they are smuggled ones especially when they have been purchased from the open market. They submitted that the burden to prove that they are of smuggled nature has not been discharged by the Revenue when the goods are not notified under Section 123 of the Customs Act. 3. The learned DR pointed out that the goods are smuggled ones and as they are smuggled ones, its confiscation is valid as held by the Madras High Court in the case of A. Shaud Ali v. ACC, Madurai - 2001 (133) E.L.T. 554 (Mad.). 4. We have carefully considered the submissions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the goods were smuggled by the appellant. A.B. Kundu v. Coll. of Customs - 1998 (104) E.L.T. 732 (T) 1984 ECR 2296 (CEGAT) in Coll. of Central Excise P.C. Agarwal v. Collector of Customs - 1990 (47) E.L.T. 45 (T) = 1990 (26) ECC 38 Samerchand Jain v. CC - 1992 (40) ECR 540, 1986 (6) ECR 669 Amar Dutta - 1980 (49) E.L.T. 61 (6) The burden of proof in respect of non-notified goods under section 123 of the Customs Act, 1962 is on the department. No positive evidence is let in to prove that the goods are smuggled in nature. The following ratio decisions fully support the above contention and the issue is no longer res integra. (1) Burden to prove smuggled nature of goods on the Revenue when the goods are not notified under Section 123 of Customs Act, 1962. NIPA Traders v. Comm. of Customs - 2004 (165) E.L.T. 435 (Mumbai) Confiscation of goods - Smuggled goods burden to prove - Goods contained chemicals of foreign origin which were freely importable - Department not discharged burden of proving that they were smuggled goods - Confiscation not sustainable - Sections 111(d) and Section 123. Commissioner of Customs v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to produce the legal documents showing importation of the same does not lead to conclusion that goods are smuggled - Confiscation set aside - Ramprakash v. Collector of Customs - 2003 (161) E.L.T. 882 Smuggling - Evidence - Burden of proof - In absence of any evidence head by the department that copper scrap seized at New Delhi Railway Station is of foreign origin - Confiscation under Section 111(d) not sustainable - Initial burden to prove that goods are smuggled not having been discharged by the department - Burden of proof cannot shift to the appellants. Ashok Kumar Jain v. CCS - 2003 (159) E.L.T. 683 Confiscation of goods - Smuggled goods - Silk yarn non-notified items under Section 123 - Revenue is required to show that the same is of smuggled nature by production of evidence - Confiscation set aside - Section 111 HIM Electronics Traders v. Commissioner of Customs - 2003 (159) E.L.T. 761 (New Delhi) Smuggling - Confiscation and penalty - Non-notified goods - Goods of foreign origin being freely, tradable and available in open market and not being under Section 123 - Not to be presumed as smuggled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page No. 7 10 2003 (54) RLT 531 Ravinder Khurana - 2003 (161) E.L.T. 360 (T) = Page Nos. 11, 12 2003 (58) RLT 412 (2) MERE MARKING OF FOREIGN ORIGIN DOES NOT BY ITSELF RENDER THE GOODS TO BE SMUGGLED Commissioner of Customs v. Monoranjan Banik - 2004 (165) E.L.T. 237 Confiscation of goods - Smuggling - Foreign origin - Burden of proof - Mere fact that goods were admitted to be of foreign origin does not ipso facto lead to inevitable conclusion that the same are of smuggled character - Smuggled nature of goods to be proved by Revenue by producing affirmative and tangible evidence - Assumption and presumption that goods are seized from the area which is a smuggling zone cannot be the basis for confiscation - Section 111 Godari Rai v. Commissioner of Customs - 2003 (160) E.L.T. 1027 Smuggling - Onus to prove - Appearance of foreign markings of different countries of origin on few pieces of metal scrap not conclusive to prove of entire scrap being foreign origin - No evidence placed by Revenue to show that goods are smuggled - Confiscation not justified - Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Fernandez v. State of Kerala - AIR 1957 SC 657 (f) McDowel Co. v. CTU - AIR 1997 SC 1459 (g) Md. A.H. Khan v. Commissioner of Wealth - AIR 1997 SC 1 5. The Commissioner has confirmed the duty with regard to the goods, which were not seized from the appellants, but on the ground that the appellants had admitted in their statements about having purchased smuggled goods on earlier occasions. This is not proper in law. The goods had to be seized and their value has to be drawn up and appellants had to be issued Show Cause Notice before the demands are confirmed under Section 28 of the Customs Act. Mere admissions made in the statements of earlier purchases cannot be a ground to confirm the duty without proceedings initiated on the same. Therefore, the confirmation of demands on the alleged Computer parts said to have been purchased by Sanjay Patel is set aside. In so far as the present goods, which have been seized and released on redemption fine, we find from the statements of the appellants that it was purchased by them from open market in Delhi. The statements have not been controverted by the Revenue. The Revenue has only stated that they had asked the DRI to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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