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TMI Blog2007 (11) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal, observed that the goods were not non-notified under Section 123 of Chapter IVA of the Customs Act and are freely available in the market. In terms of the Circular No. 95/2003-Cus., dated 6-11-2003, the burden of proof in respect of non-notified goods under Section 123 of the Customs Act, lies upon the Revenue. Inasmuch as there was no evidence in the present appeal that the goods were smuggled into the country, he has set aside the order of confiscation, by relying upon the earlier decision of the Tribunal. 3. Shri R.K. Pardeshi, ld. DR appearing for the Revenue has referred to some of the decisions of the Tribunal to the effect that where Revenue has discharged the initial onus, the same gets shifted to the appellant. There can be no legal dispute for the above proposition. The onus for proving the smuggled nature of goods is transferable onus and can be shifted to the person from whom the possession of the foreign origin goods have been recovered. However, such shifting depends upon the discharge of initial onus placed upon the Revenue under the provision of law, which requires production of some evidence to that effect. The appellant in their initial statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 93917 and 93935 dated 25-4-2003. He denied having any purchase bill/import documents for the impugned goods. He also stated that the bills/invoices given to the transporter were fake and the same did not have correct address. (3) No doubt, toys are not notified under Section 123 of the Customs Act, 1962 and hence the initial burden to prove that they are smuggled is on the departmental authorities. However, in this case it has been established that the goods are of foreign origin, the consignors are fake and non-existent, the purchase of the goods is not backed by any import documents or purchase bill, the statement given by the Manager of the consignee has admitted that the bills/invoices given to the transporter are fake and contain incorrect address. He has not also furnished any details from which shops/persons these foreign origin goods have been acquired. (4) It is true that freely importable goods can be imported into the country without an import licence but only after payment of customs duty and by a person who has been allotted an Importer/Exporter Code (IEC) No. under Section 7 of the Foreign Trade (Development and Regulation) Act, 1992. There is a requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above and the fact that the impugned goods are in trade quantity and are valued at ₹ 94,200/-, I am of the view that the Customs Authorities have discharged the initial burden of proof on them and that the same are liable to be confiscated as held by the Original Authority. Accordingly, I set aside the impugned order-in-appeal and restore the order-in-original. Sd/- C. Satapathy Member (Technical) 2-8-2005 DIFFERENCE OF OPINION The following difference of opinion is referred to the Hon ble President in terms of the Section 129C(5) of the Customs Act, 1962 :- Whether the Revenue s appeal is to be rejected as held by the Member (Judicial) OR Whether the impugned order-in-appeal is to be set aside and the order-in-original is to be restored allowing the Revenue s appeal as ordered by the Member (Technical). Sd/- C. Satapathy Member (Technical) 2-8-2005 Sd/- Archana Wadhwa Member (Judicial) 2-8-2005 6 . [Per : T. Anjaneyulu, Member (J)]. - Heard the ld. DR Shri Pardeshi. None appeared for the respondents. This matter has been referred to the opinion of the third Member on the conflicting views expressed by both the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue are as follows : - It is well known that toys of Chinese origin are being freely imported, in view of the liberalization of Import Policy, as such failing to produce documents cannot be held against the appellant. Ld. DR contention that the appellant was given a chance to explain the possession of the goods in question and has failed to do so, which would shift the burden of proof to the appellant, does not appeal to us. Distinction between notified and non-notified item under Section 123 would get blurred if in any case, it is the possessor of the goods who has to explain the possession. Settled law is to the effect that burden in case of non-notified goods rests heavily upon the Revenue and is required to be discharged by them by production, of tangible evidence. Failure of the appellant does not ipso facto leads to the inevitable conclusion that the goods are smuggled. In view of the above, I do not find any infirmity in the view taken by the appellate authority. The Revenue s appeal is accordingly rejected. 10. Whereas the Hon ble Member (Technical) while admitting the fact that the initial burden rest on the Department in respect of non-notified goods under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah v. Union of India. 11. 2004 (163) E.L.T. 391 (Tri.-Mumbai) - Comm. of Customs, Ahmedabad v. R.P. Gangwal. 12. 2000 (120) E.L.T. 59 (Kar.) - Sri Bahubali v. CCE, Bangalore. 13. 1984 (16) E.L.T. 631 (Tri.) - Bahubali v. CC, Bangalore. 14. 1986 (26) ELT 108 (Tri.) - Narendra Kumar H. Patel v. CCCE, Jaipur. 15. CC v. D. Bhoormull - 1983 (13) E.L.T. 1546 (S.C.). 16. 1966 ITR 60-0011 SC - BEST Co. v. CIT. 17. 1998 (101) E.L.T. 147 (Tri.) - Manohar Punjabi v. CC, Delhi 18. 1993 (66) E.L.T. 409 (Tri.) - Kashi Prasad Saraff v. CC 19. 1992 (59) E.L.T. 604 (Tri.) - D.C. Awasthi v. Collector of Customs 20. 2001 (136) E.L.T. 594 (Tri. - Kolkata) - Narendra Kr. Jain v. CC(P), Shillong. 21. 2003 (154) E.L.T. 169 (Tri. - Del.) - Kulbhushan Jain v. CC 22. 2002 (143) E.L.T. 195 (Tri.-Del.) - Kailash Chand Jain v. CC, Kanpur. 23. 2001 (136) E.L.T. 100 (Tri. - Del) - Sudesh Kumar Mittoo v. CCCE, Jaipur 24. 1984 (16) E.L.T. 257 (Tri.) - Betha Pydiraju v. CCE, Guntur 25. 1983 (12) E.L.T. 849 (CEGAT) - Shri Arjun Das Kabari, v. CCE, Jaipur. 12. Both the Hon ble Members, Judicial as well as Technical have obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence, unless it is provided by any law that the burden of proving the fact shall lie on any particular person; but the burden may in the course of a case be shifted from one side to the other and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by parties respectively. The Hon ble Supreme Court delivered a landmark judgment in the case of CC, Madras and Others v. D. Bhoormull - 1983 (13) E.L.T. 1546 (S.C.) which lays down the principle in respect of discharge of the burden and the same is being followed in all subsequent cases by all High Courts, subordinate Courts and Tribunals etc. in the country. The aforesaid principle has been explained by the Hon ble Bombay High Court in the case of CC (Prev.) v. Shri Ganesh Enterprises [2006 (199) E.L.T. 208 (Bom.)] (in specific terms) that it would be, thus, seen that the Supreme Court held that even if a person who is to be proceeded against has a special or peculiar knowledge of fact, the Department is not relieved of its burden to establish that the goods have entered into the country il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed by the Hon ble Bombay High Court in the case of Ganesh Trading have to be applied in the instant case of non-notified goods under Section 123 of Customs Act. The principle laid down in Maganlal Gulabchand Shah would be applied in the case of gold or other goods enumerated or notified under Section 123 of Customs Act, 1962. 17. I have gone through the case record in its entirety. Absolutely there is no evidence on behalf of the Department to establish the fact even prima facie that the goods are smuggled one. The Department is trying to prove in negative manner by pointing out the lacunas out of the statement of the appellants recorded under Section 108 and holding them guilty as there is no other evidence on behalf of the appellants. Equally there is no other independent evidence on behalf of the Department. This is quiet against the rule of evidence. There must be some positive evidence on behalf of the Department to establish the fact. The fact that the goods are smuggled in nature to be established when they are not notified. In respect of non-notified goods no presumption would lie in favour of the Department as per Section 123 of the Customs Act, 1962. The cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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