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TMI Blog2012 (10) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Nothing prevented the department to carry out further investigation to check the veracity of the documents - As the department could not discharge the onus to show the smuggled nature of the goods. In these circumstances the Commissioner's order is not sustainable and is accordingly set aside and appeals in the case of above three appellants are allowed with consequential relief - in favour of assessee. - CDM-220-222/06 - - - Dated:- 25-9-2012 - SHRI S.K. GAULE, AND DR. D.M. MISRA, JJ. Appearance: Shri K.P. Dey, Advocate for the Appellant (s) Shri S. Chakraborty, A.C. (A.R.) for the Respondent (s) Per Shri S.K.Gaule. 1. Heard both sides. 2. Appellants filed these appeals against Order-in-Appeal No.171-173/CU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed the demand against them while relying upon Notification No.9/96 which provides that the goods which are exported to Nepal to countries other than to India would be treated as prohibited goods and the Notification is not applicable to their case because the goods have not come from Nepal and these goods are of third country origin. Therefore Notification is not applicable to their case. The contention is that since the goods are not covered under section 123 of Customs Act, 1962 the onus lies on the department to prove that they are smuggled goods and the department could not discharge the onus. The contention is that the the cases Kewal Kishan vs. State of Punjab 1993 (67) E.L.T. 17 (SC) and Shambhu Nath vs. Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to carry out further investigation to check the veracity of the documents. The decisions in the case of Kewal Kishan and Sambhu Nath pertains to smuggled goods of gold and silver and therefore they are not relatable to this case. So far the decision cited by the ld.A.R. in the case of Nazir UI Rahaman(supra) is concerned we find that in that case the persons from whose possession the goods were recovered were not able to establish how they come to possess the said goods whereas in the instant case, the appellants have produced the cash memos for purchase of the said goods and the department could not produce anything contrary or challenged the veracity of the said documents. As already discussed, supra, the onus rested with the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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