Commissioner of Customs (P) Vs. National Radio Product - Court Judgment

Excerpt:

.....the adjudicating authority is not sustainable. the ratio of various judgments of cegat on which the appellant has relied upon is applicable to the facts of the present case." 3. in the memo of appeal, the revenue has not placed any evidence on record to rebut the findings of the appellate authority. the revenue has simply contended that the respondent has not placed any evidence on record to show the legal acquisition of the goods. they have also submitted that the respondent has admitted in his statement that he has purchased the goods from unknown persons. shri chattopadhyay submits that the said fact will not discharge the onus placed upon the revenue to show that the goods are smuggled. he places reliance upon the tribunal's decision in the case of chandrakant u. shah and ors. v.commissioner of customs, mumbai reported in [2000 (123) e.l.t. 730 (t) = 1999 (34) rlt 825 (cegat)], where it was held that in case of non-notified goods, burden to prove the same are smuggled is upon the revenue. the mere fact that the supplier firm was non-existant or disclaimer by the person who has sold the machines may raise suspicion but not proof of smuggled character.4. i find that the.....

Judgment:

1. The Revenue, being aggrieved with the order passed by the Commissioner of Customs (Appeals), has filed the present appeal. The appellate authority has set aside the confiscation of cell-phone and radios of foreign origin on the ground that the said goods are non-notified items under the provisions of Section 123 of the Customs Act and the Revenue has not produced any evidence to show that the same are smuggled.

2. After hearing from both sides duly represented by Shri M.R. Madhiam, Id. JDR and by Shri B.N. Chattopadhyay, Id. Consultant appearing for the respondents, I find that the Commissioner of Customs (Appeals) has observed as under ;- " From the records of the case, I find that the goods were seized for being of foreign origin and sole reason for their confiscation was that those were not covered by any legal documents. The impugned goods are not covered under Section 123 of the Customs Act, 1962.

Hence, the burden is on the department to prove that the impugned goods have been brought into India through an unauthorised route as alleged and are smuggled. I find that no such burden has been discharged by the department. Non production of documentary evidence showing legal importation of the impugned goods does not lead to the conclusion of their being smuggled goods. As such, I find that the impugned order passed by the adjudicating authority is not sustainable. The ratio of various judgments of CEGAT on which the appellant has relied upon is applicable to the facts of the present case." 3. In the memo of appeal, the Revenue has not placed any evidence on record to rebut the findings of the appellate authority. The Revenue has simply contended that the respondent has not placed any evidence on record to show the legal acquisition of the goods. They have also submitted that the respondent has admitted in his statement that he has purchased the goods from unknown persons. Shri Chattopadhyay submits that the said fact will not discharge the onus placed upon the Revenue to show that the goods are smuggled. He places reliance upon the Tribunal's decision in the case of Chandrakant U. Shah and Ors. v.Commissioner of Customs, Mumbai reported in [2000 (123) E.L.T. 730 (T) = 1999 (34) RLT 825 (CEGAT)], where it was held that in case of non-notified goods, burden to prove the same are smuggled is upon the Revenue. The mere fact that the supplier firm was non-existant or disclaimer by the person who has sold the machines may raise suspicion but not proof of smuggled character.

4. I find that the Commissioner (Appeals) has applied the law correctly to the facts of the case and no infirmity can be found in the views taken by him. Accordingly, I do not find any merits in the Revenue's appeal and reject the same.