9911796707
TMI Blog2007 (8) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... n origin ball bearings and the penalties imposed on the respondents. The facts that lead to in filing the afore-said appeals may be summed up as follows :- 3. On the basis of specific information, the officers of SGP II Unit kept a discreet watch and intercepted two hand carts loaded with 20 bundles and 3 bundles of ball bearings of foreign origin respectively. There were no legitimate Customs duty paying documents or any other document available with the handcart puller. The handcart puller lead the officers to the godown from where the ball bearings were loaded on their hand carts. The said godown was inspected and found 99 similar bundles of ball bearing of foreign origin. The manager supervisor of the godown Shri Hiten M. Metha was ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance 24 bundles. The investigation disclose that the seized goods totally valued at Rs. 18,02,500/- has been illegally imported into India in contravention of provisions of the Customs Act, 1962. A show cause notice dated 28-1-2005 was issued proposing confiscation of the seized goods and imposition of penalty. On due adjudication the seized goods valued at Rs. 18,02,500/- recovered from two handcarts and from the godown were confiscated while imposing penalty of Rs. 3,00,000/- on Shri Shailesh Navin Chandra Shah, Rs. 2,00,000/- on Shri N.D. Hemani and Rs. 20,000/- on Shri H.M. Mehta. 6. The respondents challenged the said O-in-O in appeal before the ld. Commissioner of Customs (Appeals), Mumbai. The appeals were allowed vide the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared from possession of DRI and a letter submitted to DRI in this regard, despite having been placed on record by the respondent, was rejected by the Department without verification from DRI. (v) Subsequent to release of ball bearings by DRI, it cannot be seized and confiscated by the M&P wing of the Customs saying that condition of notifications were not followed. (vi) The original authority despite faithfully re-producing the ratio of several judgments in favour of the respondent, ignored the same without assigning any reasons, and proceeded to apply some judgments without establishing the facts of those cases which were out of context. 7. Aggrieved by the above said order, Revenue has filed these appeals. The Revenue has raised follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 1546 (S.C.). (b) Kanungo & Co. v. CC (Calcutta) - 1983 (13) E.L.T. 1486 (S.C.) = AIR 1972 SC 2136 8. After hearing the ld. D.R. and the ld. Advocates for the respondents and after considering the submissions and material, it is found there is no dispute on the fact that the Revenue has not produced even single positive evidence to show smuggled nature of the admittedly non-notified goods. On non-notified goods, the contention of the Revenue, that it is for the appellant to produce the duty discharge non-smuggled nature of the goods cannot be upheld, even on reading of Section 106 of the Evidence Act, in view of five member Bench decision in the case of Amba Lal v. Union of India - 1983 (13) E.L.T. 1321 (S.C.) = 1983 ECR 1935 D.S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in D. Bhoormal's case. The Revenue cannot shift the burden cast on them. The judgment of Hon'ble Supreme Court in D. Bhoormal's case is infact in favour of the Respondents. The judgment in the Kanungo's case was given in the facts of the said case, which was pertaining to notified goods, and is not applicable in the facts of the instant case. The non-notified goods in the facts of this case have been correctly held to be not liable to confiscation. 9. In my opinion the statements of Shailesh N. Shah and Nilesh Hemani, regarding legal importation of the goods, cannot be brushed aside, when the department has failed to produce a shred of even presumptive material to prove illegal importation of the seized goods. Mere absence of the octroi re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.)] and Nazir-Ur-Rahman & Ors v. CC, Airport, Mumbai [2004 (174) E.L.T. 493 (Tri.)] is of no avail to the Revenue. In fact in the instant case the Revenue has failed to even investigate into the relevant aspect and have chosen not to make any inquiry regarding the truth in the statements of the respondent, as to whether the goods were part of the consignment released by DRI, and whether the description of the bearing number was incomplete for want of typing space. The revenue cannot first show laxity in the investigations and than seek to shift the burden on the notice to prove that the goods are not smuggled, especially when there is not even any 'presumptive evidence' produced to show illegal importation of the non-notified goods, and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
