COMMISSIONER OF CUSTOMS Vs. KAPIL PRASAD

JUDGEMENT

(1.) THESE appeals are preferred by the Revenue against the common order of the Commissioner (Appeals) made on 5 -2 -2007, setting -aside the order -in -original by which the Assistant Commissioner absolutely confiscated 270 Kgs. of copper scrap and 635 Kgs. of aluminium scrap under Section 111(d) of the Customs Act, 1962 and imposed penalties of Rs. 5000/ - on each of these appellants.

(2.) THE Appellate Commissioner relying on a copy of invoice produced by the appellants regarding purchase of scrap from M/s. APS Organization, Kolkata, who had admitted of having entered the said deal with the appellants held that, there was nothing on record to prove the allegation of the department that the seized goods were of foreign origin. It was observed that there must be some kind of mark of foreign origin or any other specific evidence in order to form a belief about the contraband nature of the aforesaid goods. It was also observed that the burden of proof remained on the department because the goods were not notified under Section 123 of the said Act. The order of confiscation of the seized goods and imposition of penalty was, therefore, set -aside.

(3.) THE learned authorized representative for the department submitted that the Appellate Commissioner has simply overlooked the relevant material on record, which showed that the invoices purported to have been issued by M/s. APS Organization, Kolkata were forged. He pointed out from the record that the said concern had publically notified that it had stopped functioning and the sole proprietor of the said concern had given in writing that the invoices issued in the name of APS Organization were forged and had requested the department to take appropriate action for the cognizable offences.