NAVEED AHMED KHAN Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) ALL these three appeals arise from a common OIA No. 363/2003 -Cus., dated 15 -9 -2003 by which the Commissioner (Appeals) has dismissed the appeals of the appellants and confirmed the OIO absolutely confiscating the 58 Nos. of Mobile Phones, 2 nos. of Cordless Phones, 3 nos. of Digital Diaries and 57 nos. of Chargers valued at Rs. 2,13,000/ - and directing the sale proceeds of Rs. 1,48,450/ - to be appropriated to the Government. The Maruti Van in which these goods were carried was also confiscated, however, it was released on fine of Rs. 25,000/ -. There is a penalty of Rs. 25,000/ - on Shri Javeed Ahmed Khan and Rs. 5,000/ - each on Shri Sayeed Ahmed Khan and Shri Naveen Ahmed Khan. The contention of the appellants are that these are not notified goods and they had been purchased from the open market in front of the Commissioner of Customs Office, Madras, where there are shops and they are sold openly. It is their contention that the goods are not smuggled ones and are sold from the shops, which are located near the Customs House, Madras, itself. These goods were brought by them to Bangalore in a Maruti Van and the Van was seized by the police and these goods and the persons were made over to the custom officials who recorded the statements and proceeded against them in terms of the Customs Act for absolute confiscation and for imposition of penalty. The Commissioner, in the impugned order, has come to the conclusion that the goods are smuggled goods; that the appellants did not produce any documents to prove their licit possession of the goods. He has also noted that the appellants did not possess commercial/sale documents purchase receipts, sales tax receipts or atleast some correspondence between the supplier and the purchaser to produce their licit possession of their goods. Therefore, in the absence of these documents, he has held that the burden to prove the same to be not of smuggled nature has shifted to the appellants and they have not discharged the same.

(2.) WE have heard both sides in the matter. The learned Counsel submits that the goods are not notified goods and it is an admitted fact that the goods were purchased by them from open market in Madras in a place just opposite to the Commissioner of Customs Office where there are several shops selling these goods. The sellers of the goods normally purchase these goods from the auction conducted by the Customs itself and, therefore, it cannot be said that the goods are smuggled ones. He also submitted that the shopkeepers do not issue bills. They brought the same in the Maruti Van to Bangalore and the Police had seized the goods and handed over the same to the Department. He points out that the burden to prove that the goods are smuggled ones is on the Revenue. This has not been discharged and mere marking of foreign origin on the goods by itself could not render the goods to be smuggled ones and more particularly in the facts and circumstances of the present case, for the reason that these goods are openly available in the market and freely available for sale and hence there is no violation of EXIM Policy. The goods cannot be confiscated including the Maruti Van. He has relied on the Boards Circular No. 95/2003 -Cus., dated 6 -11 -2003 wherein it has been noted that the Board has taken a serious view of the matter with regard to the goods, which are seizure of notified goods under Section 123 of the Customs Act. It also notes that the burden is on the Department to show that they are smuggled goods. He relied on the following citations : CASE -LAWS

(3.) THE learned JDR submitted that the burden to prove had not shifted on the department and they are all smuggled goods. He pointed out to the judgment of the Delhi Bench in Kulbhushan Jain v. C.C., New Delhi - 2003 (154) E.L.T. 169 (Tri - Del.) and that of C.C., Ahmedabad v. R.P. Gangwal - 2004 (163) E.L.T. 391 (Tri - Mumbai); Ballav Daga v. C.C. - 1991 (52) E.L.T. 251 (Tribunal). The learned Counsel distinguished the judgments and pointed out that the goods in these cases were of foreign marked smuggled ones and had been seized at the time of smuggling and they were all notified goods.