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TMI Blog2016 (5) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the persons in occupation of the goods & vehicle they could not produce valid documents regarding the licit purchase or import of the Chinese and Indian origin goods in question. In the course of investigation the premises of the respondent assessee M/s Naeem & Sons Electronics Pvt. Ltd. and Vodafone was searched by the revenue on 25.7.11. In the course of search, mobile phones of different models of G-FIVE and Tintel Brand-Chinese Mobile Phone were found and the same were detained for further investigation. Statement of Mr. Naeem Ahmed, Director, was recorded wherein he had stated that the aforesaid G-Five phones were purchased from M/s Praneet Electronics, New Delhi and that Tintel brand were purchased from M/s. R. V. Solutions, Lucknow. The laptop detained and from the main shop of the Respondent was also opened by the expert and the records therein were downloaded in presence of the directors. In further investigation, Mr Sanjiv Singh of M/s. R. V. Solutions in his statement recorded under section 108 certified the documents that is the invoice dated 16/7/11, copy of bill of entry number 3710200 and 3920477 filed and assessed in the Customs House at Gorakhpur, along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the sellers namely, M/s Parneet Electronics Pvt. Ltd. and M/s R. V. Solutions which were also found to be genuine on verification. In this view of the matter, M/s Naeem & Sons Electronics and the Directors, have discharged their onus. Further with reference to section 123 of the Customs Act it was also held that burden of proof in the facts and circumstances, that the goods are smuggled, lies is on the revenue and further that the revenue have failed to discharge the onus in the facts and circumstances. Accordingly, the order-in-original for confiscation and penalty was set aside and the appeal is allowed in favour of the present respondents and their company, that is, M/s Naeem & Sons Electronics Pvt. Ltd. 6. Being aggrieved the revenue is in appeal before this Tribunal on the ground that the Commissioner (Appeals) has not properly appreciated that search had taken place at two premises of M/s Naeem & Sons Electronics Pvt. Ltd.. Firstly, mobile phones of Chinese origin were found when the vehicle was seized along with the goods on 23.7.11 and the persons in-charge could not produce proper documents in support and had indicated that some of the goods were also purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year and month was printed as March, 2011. M/s Naeem and Sons Pvt. Ltd. presented the invoice issued by M/s R.V.Solutions Pvt. Ltd. that belongs to June, 2011. It appears from this that the bill of entry and invoice which were of 2011, are not pertaining to detained tintel mobiles. I observed that during search of both the shop a total of 1358 pieces of mobile phone (749 piece of tintel named company and 609 pieces of G-5 named company) were found. The appellants have produced the bills pertaining to all the recovered mobiles during the search/investigation which were issued by M/s Praneet Electronics Pvt. Ltd., New Delhi and M/s R. V.Solution Pvt. Ltd., Lucknow, on verification the said bills were found to be correct. Officers of both the Company appeared before the Customs Officers and have admitted that Chinese Mobile are purchased by M/s Naeem & Sons Electronics Pvt. Ltd. from their firm and the bills which were produced are correct. Both Companies have admitted that their companies import mobile from China. Export-import work/business is not carried out by the appellant's firm. Appellant's firm purchase goods from importers located at Delhi and Lucknow and sell the same from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y import the mobile from China and he has also verified the bill of entry produced by the applicant. If they recovered mobiles when not validly imported, or the rules prescribed by law were not followed, in these circumstances, the total responsibility is on the importer but despite this allegation, no show-cause notice was given to importer company. This means that the import done by the importer company was deemed to be correct. I observed that there is no evidence against the appellants from which it is proved that aforesaid recovered all the mobile sets were smuggled, mobile phones are the articles of "Non-notified goods" category therefore under the provision of Section 123 of Customs Act, the seizing officer has to prove that the seized goods, have been brought illegally by smuggling. He has to assert with proof that as to how, from where by what means, the aforesaid seized mobiles, have been brought illegally by smuggling and along with that he has given evidence also in support. It will be proved that the aforesaid mobile were smuggled. But in adjudication order, it has not been followed" In this case, the mobile phones and parts thereof of foreign origin are recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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