9911796707
TMI Blog2005 (1) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... h the appellants that the confiscated goods were neither notified under Section 11B nor under Section 123 of the Customs Act, 1962 and on going through the order-in-original he observed that the same did not disclose the country of origin. Therefore, from the records available he could not confirm that the goods were of foreign origin and contraband in nature. 1.(d) He, further observed from the Order-in-Original that the Adjudicating Authority had relied upon the judgment in the case of Jain Enterprises Shri Richand v. Collector of Customs, Madras reported in 1986 (25) E.L.T. 811 (Tribunal) = 1988 (15) ECR 50 (CEGAT) wherein it was held that even if the goods were not notified under Section 123 of the Customs Act, 1962, the burden initially cast on the Department would shift to the person challenging the seizure. He was of the view that in case of smuggled goods onus of proof does not shift from the Customs Authorities to the Appellants and in this context he had relied on the Hon'ble Supreme Court judgment in the case of Amba Lal v. Union of India and others [Civil Appeal No. 153 of 1956 decided on 3-10-1960 [1983 (13) E.L.T. 1321 (S.C.)] and therefore, he found no reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well entrenched in this smuggling activity." 2.(d) The facts and circumstances of the cited case are quite different from the instant case. It is well-known fact that goods like readymade garments, undergarments, electronic goods, shoes/other footwear, blankets/quilts, cotton/synthetic fabrics, cutlery, etc. (mostly of third country origin) are smuggled into India from Myanmar through the porous Indo-Myanmar border, particularly through the border town of Moreh. People dealing in such cheap Chinese and Myanmar goods go over to Namphalong (in Myanmar) and purchase miscellaneous goods. Then they smuggle the goods into the border towns of India. From the border towns (and in particular Moreh) the goods are taken to Imphal, Dimapur, Guwahati and Shillong (to name a few) are flooded with such goods of foreign origin. An article in the June 14, 2004 issue of the Shillong Times talked about Moreh being the famous transit point for goods ranging from electronic goods, clothing items and accessories, furniture, cutlery, poultry and second-hand clothes coming in from various South Asian countries via Myanmar. 2.(e) Buyers of such smuggled goods (particularly those who buy in bulk for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3-10-1960 [1983 (13) E.L.T. 1321 (S.C.)] was not called for as it was a case of recovery from a person in 1961 where it was explained to have been brought from Pakistan before the year 1947 i.e. before the enactment of the Customs Act and there was no officer before 1947 and there Hon'ble Supreme Court held that before 1948 the section will not apply. 2.(i) They relied upon the decision in the case of ABC Roadways v. Commissioner of Customs, New Delhi reported in 2002 (142) E.L.T. 186 (Tri.-Del.) and Commissioner's order No. 07/Cus/Ghy/03, dated 23-9-2003. 3. After hearing both sides and considering the material on record we find :- 3.(a) The Commissioner (Appeals) has arrived at reasons, at length as to why the goods under seizure cannot be considered to be of foreign origin. The learned Consultant's submission to the effect that :- "(i) from 1992 a liberalized Import/Export Policy was adopted by the Govt. wherein many items came under the OGL category. Slowly, this policy was further liberalized taking most items under the "Freely Importable" category. This means that once such goods are imported and cleared, they may be sold like any other goods in India. No account, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the EXIM policy provisions and without payment of duty, especially in the case of non-notified or specified goods. An opinion of an officer, that the goods are of foreign origin and smuggled, therefore, would be liable to confiscation cannot be accepted without trade panel opinions accepting the goods at least to be of foreign origin, thereafter, investigations made to point their smuggled nature has to be on record. There is no expert or trade panel opinions and/or satisfactory investigation results pointing to this foreign origin and smuggled nature of the goods in this case. The provisions of Customs Act, therefore, cannot be invoked on mere suspicion howsoever grave. We, therefore, confirm the findings of the learned Commissioner (Appeals), as regards the nature of goods are arrived at and non-applicability of the provisions of Customs Act, 1962 as applicable to imported goods in the facts of this case. 3.(d) When interdiction of personal private property of a citizen by an officer is effected the law as in that case, it has to be strictly applied. If the Commissioner (Preventive) is of the opinion that large scale smuggling will be resorted to or is resorted in a particul ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
