GHAZANFAR BASHA Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal No. 21/2008 -Cus. (B), dated 31 -1 -2008.

(2.) THE brief facts of the case are that the appellant herein had purchased parts and accessories of Granite Machine, Edge cutting machines, Caliberating machine, Forklift etc. from M/s. A.K. Trade Links, Bangalore. An investigation was carried out by the authorities. On the completion of the investigation, it was found by the authorities that M/s. Alpha Rich Granites (P) Ltd. (hereinafter as EOU) had imported many items by availing benefit of exemption of Customs Notification No. 52/2003 -Cus., dated 31 -3 -2003 and Central Excise Notification No. 22/2003 -C.E., dated 31 -3 -2003. The said 100% EOU had subsequently cleared all the said machineries, without payment of duty from the 100% EOU, without seeking any permission from the authorities. On completion of investigation, lower authorities issued a show cause notice to the said EOU directing them to show cause as to why duty be not been demanded on the capital goods and other goods cleared from the factory premises without payment of duty and also issued the show cause notice to the current appellant for imposition of penalty under Section 112(a) of the Customs Act, 1962. The current appellant contested the show cause notice before the Adjudicating Authority on various grounds and also contested that he had procured these goods from M/s. A.K. Trade Links and produced bills for such purchases. The Adjudicating Authority did not accept the contentions raised by the appellant. He confirmed the demand of the duty on the goods, which were seized during the proceedings, also confiscated the said goods and gave an option for redemption, on payment of redemption fine and also imposed penalty on the appellant under Section 112(b) of the Customs Act, 1962. Aggrieved by such an order, the appellant preferred an appeal to the learned Commissioner (Appeals). Learned Commissioner (Appeals) after considering the submissions made by the appellant before him, came to the conclusion that the O -I -O is correct and does not require any interference. Aggrieved by such an order, the appellant is before us.

(3.) LEARNED Counsel appearing on behalf of the appellant would submit that the learned Commissioner (Appeals) has erred in upholding the confirmation of the demand imposition of penalty and confiscation. He would submit that the learned Commissioner (Appeals) erred in not considering the specific contention of the appellant regarding the Forklift Truck seized from the possession. He submitted that it is already on record that the said forklifts were imported vide Bill of Entry No. 8427.00 and were cleared from the customs, after inspection by the authorities. It is his submission that be that as it may, the Forklift not being covered by the same bill of entry, the burden of proof as to its importation without payment of duty is on the revenue as per the ratio of the decision contained in the following cases :