Customs, Excise and Gold Tribunal - Calcutta
Anand Agarwala vs Commissioner Of Customs, Shillong on 4 February, 2002
Equivalent citations: 2002ECR250(TRI.KOLKATA), 2002(143)ELT75(TRI-KOLKATA)
ORDER
Archana Wadhwa, Member (J.)
1. Vide the impugned order, Commissioner of Customs, Shillong has confiscated 994 ball bearings with option to appellant to redeem the same on payment of redemption fine of Rs. 2/00,000/- (Rupees two lakhs) and on payment of duty. In addition personal penalty of Rs. 3,00,000/- (Rupees three lakhs) has been imposed under the provisions of Section 112 of the Customs Act, 1962.
2. Shri D.K. Saha, Id. Consultant appearing for the appellant submits that the appellant is a trader in ball bearings and buys the same from different parties as also from auction conducted by Customs Houses. On 12-12-97 the appellants' shop and godown premises were raided and the ball bearings in question were seized. At the time of visit of the officers the appellant stated that the goods in question were purchased by him from various parties against cash. However, at the time of filing of reply to the show cause notice, he had produced the relevant bills showing the purchase of the bearings in question. He submits that the said bills were put to verification by the Customs, New Delhi and were found to fake inasmuch as the firms issuing the said bills were not locatable at the given address. He submits that this is the sole ground for holding that the ball bearings in question are of contraband nature. He submits that as already disclosed by the appellant at the time of seizure he purchases the goods from various parties who come to him and issue the bills. The appellant was not in a position to verify the genuineness or otherwise of the bills issued by the said persons. He submits that in any case the said factor does not ipso facto lead to the inevitable conclusion that the ball bearings in question are smuggled especially when ball bearing is an OGL item and is freely available in the open market. Shri Saha further submits that the goods are non-notified items and as such the burden to prove that the same are smuggled lies upon the Revenue who has failed to discharge the same. He also relies upon various decisions of the Tribunal.
3. Shri A.K. Pandit, ld. JDR appears on behalf of the Revenue and submits that the very fact that the bills and documents produced by the appellant were found to be fake, is indicative of the fact that the ball bearings are smuggled one. As such he submits that the Revenue has discharged the initial burden placed upon it.
4. I have considered the submissions made from both the sides. Admittedly ball bearings are non-notified items under the provisions of Section 123 and it is for the Revenue to prove that the goods are smuggled. The Tribunal in the case of Chandrakant U. Saha v. CC [2000 (123) E.L.T. 730 (T) = 1999 (34) RLT 825 (CEGAT) has held that the fact of alleged supplier firm being non-existent or disclaimer by the person, who sold the goods in question may raise suspicion, but cannot take the place of evidence to show smuggled character of the goods. By observing so the confiscation of the fax machine in that case and the penalty imposed upon the appellant was set aside. To the same effect is the decision of the Tribunal in the case of CC (P), Ahmedabad v. K.D. Irani [2001 (136) E.L.T. 1364 (T) = 2001 (45) RLT 964 (CEGAT-Mumbai)]. It was held that purchase bills having been found to be issued by bogus firms is not sufficient to establish illegal import of engines when the same are freely available in the market and are not covered by Chapter IVA or Section 123 of the act. I further find that the Tribunal in the case of CC v. Commercial Enterprises - 1991 (51) E.L.T. 594 (T) has held that the burden of proof of smuggled nature of roller bearings which are not notified is upon the Revenue; foreign origin of goods or the fact of seller being a fictitious firm cannot shift such burden on the appellant and the Revenue cannot be said to have discharged the burden placed upon it. In the present case also I find that there is no evidence produced by the-Revenue reflecting upon the contra band nature of the ball bearings in question, Admittedly ball bearings are non-notified items either under the provisions of Chapter 1VA or under Section 123 of the Customs Act. The adjudicating authority, for holding the bearings to be of tainted character has relied upon the fact that the supplier firms are bogus. In the various decisions discussed supra it has been repeatedly held that the fact of the supplier firms being fictitious cannot be held to be an evidence of the goods being of smuggled character or the burden having been shifted from the department to the appellants. Inasmuch as there no evidence by the Revenue in the present case I am of the view that confiscation of the ball bearings and imposition of penalty upon the appellant is not justified. Accordingly, I set aside the impugned order the allow the appeal with consequential relief to the appellant.