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TMI Blog2005 (11) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ggled. They could also not be able to produce any document relating to the smuggled activities. The whole order of the Commissioner (Appeals) has been passed on mere suspicion. Suspicion, howsoever strong, cannot take the place of proof. As such, it is for the Revenue to prove by production of sufficient tangible evidence that the same had been smuggled into the country. They have not produced any evidence to this effect. Therefore, I do not find that the Customs have discharged its obligation to prove that the betel nuts in question had been smuggled into the country. Thus, the above-captioned three appeals filed by the two appellants and set aside the Orders passed by the Commissioner (Appeals). This Order is confined to the appellants wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made a follow-up investigation and issued the show cause notices to different parties under the various provisions of the Customs Act, 1962. The lower authority confiscated absolutely some of the betel nuts and in a few cases where the owners had claimed the goods, the adjudicating authority confiscated the betel nuts, but allowed the same to be redeemed on payment of Redemption Fines, and different amounts of penalties were also imposed on various persons. 1.2 Some of the persons had filed appeals before the Commissioner (Appeals), who vide his Orders-in-Appeal, confirmed the Orders passed by the lower authorities. Out of the four parties relating to the Order-in-Appeal No. 160-163/PAT/CUS/APPEAL/2004 dated 21-7-2004, one Shri Bijo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any stage that these goods were smuggled goods. The Commissioner, however, has observed that the onus cast on the Department stands discharged. In support of his observation, the Commissioner has relied upon the Honourable Supreme Court's decision in the case of Kanungo & Co. v. Collector of Customs, Calcutta reported in 1983 (13) E.L.T. 1486. The Advocate submitted that the case relied upon by the Commissioner (Appeals) deals with the goods notified under Section 123 of the Customs Act as such not applicable in these cases. The Advocate, further contends that the fact that the adjudicating authority as well as the Commissioner (Appeals) has put the burden on the appellants to prove that the goods in question were not smuggled, is not corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha referred to above, has observed at para 4 as follows :- "4. The provision relates to the burden of proof in certain cases, therefore, it cannot have a general application and the opening sentence begins with the phrase 'where any goods to which this section applies'. Therefore, it relates to goods to which the section applies, and the section is made applicable by reason of sub-section (2) to gold (and manufactures thereof) watches and any other class of goods that may be specified by the Central Government by notification in the Official Gazette. Therefore, Section 123, which is a departure from the normal rule of evidence, is applicable only in respect of certain cases where Section 123, applies which has no general application. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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