SHRI RAJESH AGARWAL AND MOOL CHAND Vs. CC

JUDGEMENT

(1.) THESE appeals are directed against the order -in -appeal dated 19.7.2004 wherein the learned Commissioner (Appeals) has upheld the order -in -original, which imposes penalty and confiscates the truck and the goods.

(2.) THE relevant facts that arise for consideration are the appellant No. 2 in C/478/2005 -NB (SM) dispatched brass scrap weighing 2555,5 Kg. and 3042.1 Kg. of zinc dross to a purchaser through vehicle No. MP20G/3364, which is owned by appellant No. 1 in appeal No. C/477/2005 -NB (SM). The said vehicle was intercepted by the authorities and on opening the bags, it was found that the pieces of brass scrap bore markings/inscription in foreign language. The driver was asked to produce documents. He produced the invoices issued by appellant No. 2. Not satisfied with the documents, produced by the Driver, the authorities seized the goods and also seized the truck and issued show cause notice why the same should not be confiscated under the provisions of Sections 111(d) of the Customs Act. The adjudicating authority ordered for absolute confiscation of 2555.5 Kgs. of brass scrap, imposed redemption fine of Rs. 20,000/ - in lieu of confiscation of truck and imposed personal penalty of Rs. 2,500/ - on appellant No. 1 and Rs. 5,000/ - on appellant No. 2. Being aggrieved by the said order, the appellants preferred an appeal before the Commissioner (Appeals), who also upheld the order without any modification. Hence these appeals.

(3.) THE learned Counsel appearing for the appellants submits that in respect of the quantity of the goods absolutely confiscated, the same was purchased as scrap from one M/s. Sanjay Metal Kanpur and produced the documents i.e. invoice No. 111 dated 19.9.98. It was further submitted that having produced the legal possession of the goods which were confiscated, he submits that, the onus of proving that the goods were of smuggled nature shifted to the department and the department has not adduced any evidence in that regard. In respect of the confiscation of the truck, it was submitted that the truck should not have been confiscated because the driver of the truck produced an invoice issued by appellant No. 2 and he was not knowing what is there in the gunny bags, which were loaded in the truck. In the same breath, the owner of the truck would also might not he aware what is in the truck as documents regarding the goods being loaded in the vehicle accompanied the goods.