Judgment:
1. After hearing both sides duly represented by Shri Aftab Ahmad, learned Advocate for the appellants and Shri V.K.Chaturvedi, learned SDR for the Revenue I find that a penalty of Rs.50,000/- (rupees fifty thousand only)has been imposed upon Shri Binod Kumar Sahu who is the owner of the truck which was found to be loaded with onion of Myanmar origin and penalty of Rs.1.0 lac been imposed upon Shri Mahavir Prasad who is the owner of onion in question. The Commissioner in his impugned order has concluded, based upon the statement of Mahavir Prasad that onions in question were of Myanmar origin. However, it is seen that onions are not notified items under the provisions of Section 123. As such even if the initial statement of Mahavir Prasad is accepted the onions which are to be of Myanmar origin, is held to be correct statement the onus to prove that the onions are actually smuggled from Myanmar has to be proved by the Revenue by production of evidence.
There is nothing on record to show that onions in question have been smuggled from Myanmar. Keeping all these facts into consideration I dispense with the condition of predeposit of penalties and take the appeals itself with the consent of both sides. In view of what has been stated above, I find that there is no evidence of the smuggled character of the onions. Accordingly , I set aside the impugned order and allow both the appeals with consequential relief to the appellants.