Customs, Excise and Gold Tribunal - Delhi
Sadbhavana vs Commissioner Of Customs on 28 August, 2003
Equivalent citations: 2004(91)ECC607, 2003(158)ELT652(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This appeal has been directed by the appellants against the impugned order-in-appeal dated 7-10-2002 vide which the Commissioner (Appeals) has affirmed the order-in-original of the Deputy Commissioner ordering confiscation of the seized goods of foreign origin under Section 111 of the Customs Act with an option to get the same redeemed on payment of redemption fine of Rs. 10,000/- and also imposed penalty of Rs. 5,000/- on the appellants.
2. On 14-11-2000, the Officers of Customs and Central Excise conducted search of the premises of the appellants' firm at 502, M.G. Road, Indore, where they are running a business under the name and style of M/s. Sadbhavana and during the course of search, the goods of foreign origin (toys) valued at Rs. 19,205/- were found and the same were seized on the belief that they were smuggled goods and liable to be confiscated under the Customs Act.
3. Shri S.K. Khandelwal, Proprietor of the firm, admitted the foreign character of the goods, but failed to produce any document regarding the legal purchase/import of the same. Accordingly, show cause notice was served on him in the name of his firm, and thereafter the adjudicating authority passed the order-in-original ordering the confiscation of the goods with an option to get the same redeemed on payment of redemption fine and also imposed personal penalty of Rs. 5,000/- on him. That order has been affirmed by the Commissioner of Customs.
4. I have heard both sides and gone through the record. The bare perusal of the record shows that the authorities below have ordered the confiscation of the goods and imposed penalty on the appellants on the ground that they failed to produce any document regarding the legal import/possession of the goods which were of foreign origin (Made in China), but has lost sight of the fact that the initial burden to prove the smuggled character of the goods was on the Department. No doubt, Shri S.K. Khandelwal, Proprietor of the appellants' firm, did not dispute the Chinese origin of the goods, but the goods were at that time and even now are available in the open market. These were not, at the relevant time, even the notified goods. Mere non-production of the bill by the appellants which is a small concern being run by its sole Proprietor, Shri S.K. Khandelwal, could not lead to an inference that he had smuggled those goods. It was on the Department, as observed above, to prove the smuggled character of the goods, especially when these are available for sale and purchase in the open market. Since the Department has failed to discharge this burden, neither the seizure of the goods could be ordered nor any penalty could be imposed on the appellants. Therefore, the impugned order cannot be sustained and the same is set aside. The appeal of the appellants accordingly stands allowed with consequential relief, if any, permissible under the law.