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TMI Blog2016 (11) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. The findings of the lower authorities that the seized goods are smuggled goods merely on the basis of the packing material, cannot be accepted. The appellant categorically stated that he had purchased the material locally and the goods are freely available in the open market which was not disputed by the Revenue. The scrap being non-notified goods, smuggled nature of goods, are to be proved by the Revenue by producing affirmative and tangible evidence. The lower authorities proceeded on the basis of assumption and presumption that the goods were seized from Raxaul, which is near to Nepal cannot be basis for the confiscation of the goods. I find that the Tribunal in the case of Commr. of Customs (Prev.), Kolkata Vs. Manoranjan Banik [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide and destined to Delhi. It was found that the truck was loaded with zinc dross and iron scrap, packed in plastic bags and old and used iron sheets. It was noticed that the plastic bags in which the said goods were packed, were bearing the marking of different factories of Nepal. The driver could not produce any documents of importation of the goods. Thedriver in his statement dated 03.03.2013 stated that the goods were loaded from a godown situated in a lane located about 5 Kms away from railway crossing at Raxaul. The goods and truck were seized under Section 110 of the Customs Act, 1962. The owner of the truck, Shri Raza Waris in his statement dated 19.03.2013 stated that the goods were loaded at Raxaul. Shri Monoj Kumar Sah, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iron, aluminium.............. . The concerned authority concluded that Above analytical finding reveals that sample under reference is other than zinc dross, however, it seems to be residue from processing of various form of Industrial Zinc (Zinc residue). 4. The ld.Advocate appearing on behalf of the appellant submits that the goods are freely available for purchase and sale in the country. Admittedly, the goods were purchased in India. The goods were also loaded in a place within the territory of India being transported to a place (Kanpur) within the Indian territory. The statement of the appellant does not show any reflection of his admission that he has smuggled the goods. The goods are non-notified under Section 123 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find any material that the seized goods are smuggled goods except that the packing material are bearing the name of the factories of Nepal. Even, the Chemical Examiner's report would not indicate that the seized goods are smuggled goods. The findings of the lower authorities that the seized goods are smuggled goods merely on the basis of the packing material, cannot be accepted. The appellant categorically stated that he had purchased the materials locally and the goods are freely available in the open market which was not disputed by the Revenue. The scrap being non-notified goods, smuggled nature of goods, are to be proved by the Revenue by producing affirmative and tangible evidence. The lower authorities proceeded on the basis of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention of any attempt of erasing the foreign marks. Even the Revenue could not mention the name of the foreign country where such metal-scraps were allegedly manufactured. 6. It is true that the statements made under Section 108 of the Act can be used against the persons from whom the materials have been seized without any corroborative evidence, provided, such statement is recorded after service of summons as required under the Act and that those are voluntary. In the cases before us, all that has been proved is that metal-scraps, even having no marks of foreign origin, have been transported from lslampur in the district of Murshidabad to Calcutta. The seized goods in question being undisputedly non-notified item in terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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