DINESH CHAJJER Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THESE are the two appeals filed by Shri Dinesh Chajjer (Jain) and Pankaj Jain, against the Order -in -original No. 5/2001 -Commr. Cus. Adjn., dated 6 -2 -2001 passed by the Commissioner of Customs, Bangalore.

(2.) SHRI Laxminarayana, ld. Advocate appeared for the appellants and Smt. Radha Arun, ld. SDR appeared for the Department.

(3.) SHRI Laxminarayana, ld. Advocate pleaded that in this case computer parts were seized from the appellants and some of these were disposed off even before confiscation order was passed. He pleaded that computer parts are neither notified goods under Sec. 123 of the Customs Act nor these are the prohibited goods. These can be imported under OGL and therefore, the burden that these are smuggled goods lies on the Department. He relied on the decision of CEGAT in the case of Lajwanti D. Datwani and Ors. v. CC (Prev), Mumbai reported in 2002 (150) E.L.T. 156 (T) = 2002 (53) RLT 864 wherein it was held that the computer hard disk floppy drives etc. not notified under Sec. 123 and are imported under OGL - it is for the Department to prove the smuggled nature of these goods - non -disclosure of correct details of purchase not sufficient to hold the goods as smuggled ones. Therefore, such goods cannot be confiscated and penalty cannot be imposed. He also pleaded that in this case some of the goods were auctioned before adjudication and these were not available for confiscation, therefore, penalty cannot be imposed in lieu of confiscation. He relied on Tribunals decision in case of Agro Impex v. CC, Mumbai reported in 2003 (158) E.L.T. 705 and stated that penalty cannot to be imposed in lieu of confiscation but redemption fine could have been fixed.