9911796707
TMI Blog2013 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before Tribunal. Held that:- Tribunal finds that there is no direct evidence on record showing smuggling of battery scrap from Nepal. The Revenue is solely relying upon the statement of who is a co-accused tribunal also finds that battery scrap is non-notified item in terms of provisions of Section 123 of the Customs Act. As such, the onus to show that the same was smuggled lies very heavily upon the Revenue and is required to be discharged by production of sufficient and tangible evidence. Inasmuch as the confiscation stand set aside, there is no justification for imposition of penalties on both the appellants. - C/387-388/2010-SM(BR) - 838-839/2012-SM(BR)(PB) - Dated:- 27-6-2012 - Ms. Archana Wadhwa, J. Shri Naveen Mull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation, statement of Shri Rajesh Kumar was recorded on 12-11-2007 wherein he admitted having loaded the battery scrap from his firm M/s. Jai Ambey Traders. He clarified that seized scrap battery was loaded from Bargadwa, District Mahrajganj and from Nautanwa, truck had gone to village Parauli located near Nepal boarder in the said night of 6/7-11-2007 to take the labours for loading the scrap battery. He also submitted that his brother Shri Girijesh Babu was a student of class 12 and did not go for loading of the goods in the night of 6/7-11-2007. As regards the battery scrap, he deposed that the same is delivered to him by different hawkers in his shop and deposition of driver that Shri Brijesh Babu went to Nepal to bring the goods/sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement. The same is to the effect that on enroute to Nautanwa, for the purpose of loading the goods, he did not find any goods there. Brother of Shri Rajesh Babu told him that he will bring the goods from Nepal, as such, two trolleys were brought from Nepal and loaded in the truck. I find that the said statement is in the shape of hear say evidence. He has nowhere deposed that he has seen Shri Rajesh Kumar bringing the goods from Nepal. He has simply deposed that Shri Girijesh Babu went with him to the village parauli where the goods were loaded in truck. Admittedly village Parauli is in India. The driver has nowhere deposed that he has seen Shri Brijesh Babu bringing the goods from Nepal. The appellants contention is that there is a vigi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so I find that admittedly the goods were accompanied by a challans/invoices of M/s. Jai Ambey Traders, who were dealer in battery scrap and the other types of scrap. 11. I also note that battery scrap is non-notified item in terms of provisions of Section 123 of the Customs Act. As such, the onus to show that the same was smuggled lies very heavily upon the Revenue and is required to be discharged by production of sufficient and tangible evidence. The Revenue is expected to first establish that the scrap in question was of foreign origin and the same has entered into India through illegal route. In the absence of any affirmative evidence the same cannot be held to be smuggled goods on the sole statement of driver. As such, I am of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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