SUNIL KUMAR SHAH Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) HEARD Shri G.C. Sarkar, Advocate for Appellant and Shri K. Sanyal, JDR for Respondent. Mr. Sarkar submits that the appellant purchased Copper scraps locally in piece meals from different workshops who engaged in repairing electric motors and vehicle part. This generates such type of scraps under such the presumption drawn by the Commissioner of Appeals is arbitrary. The Department failed to prove the smuggled nature of the goods or that of foreign origin under Section 123 of Customs Act, 1962. The goods are neither restricted nor prohibited and as such movement of the subject goods in the internal territory of the country cannot be challenged or restricted. He submits that there is no iota evidence against the appellant. He draws attention in the case of Commr. of Customs (Prev.), Kolkata v. Monoranjan Banik reported in 2004 (165) E.L.T. 237 (Tri. - Kolkata). Therefore, he submits that the appeal may be allowed.

(2.) LEARNED DR supports the impugned order.

(3.) THE Copper scrap is not a notified item. Therefore, it is for the Revenue to prove by production of formative evidence that the goods in question have entered India illegally. The confiscation cannot be ordered on the basis of assumption or presumption. There is no iota evidence that the goods were smuggled or imported from Nepal. The goods were seized from the Railway station. The Commissioner (Appeals) has drawn a presumption of smuggled nature of goods on the basis of price difference which is not permissible. The Revenue was under obligation to prove the smuggled nature of goods or of its third country origin. The Revenue miserably failed to prove the smuggled nature of goods. Similar view was expressed in the case of Commr. of Customs (Preventive), Kolkata v. Monoranjan Banik reported in 2004 (165) E.L.T. 237 ( Tri. - Kolkata). The appeal deserves to be allowed. Consequently, I set aside the impugned order and allow the appeal with consequential benefit to appellant.