MOTI SINGH Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) HEARD Shri B.N. Chattopadhyaya, Consultant for the Appellant and Shri K.K. Sanyal, JDR for Respondent. Mr. Chattopadhyaya submits that the appellant Shri Promod Jhunjhunwala is the proprietor of M/s. Om Shriti Textiles (P) Ltd. situated at Bhagalpur, Bihar. In course of his normal business the appellant purchased 297.60 Kgs. of Tasar Silk valued at Rs. 3,38,088/ - from M/s. Priti Silk, Varanasi under Bill No. MRS/16 dated 29 -4 -2002. The appellant also purchased 293.99 Kgs. of Mulbery Raw Silk Yarn valued at Rs. 3,38,088/ - from the said concern under Bill No. MRS/18 dated 30 -4 -2002 and 19273 dated 29 -4 -2002 who in turn booked consignment to the appellant by train under R.R. No. 468318 dated 1 -5 -2002. The representative of M/s. Krishna Cargo Movers accompanied the goods to Varanasi to Bhagalpur. At Patna Rly. Station, the officers of Customs unloaded the consignment. The representative of M/s. Krishna Cargo Movers produced the relevant documents in connection with the transportation of the goods from Varanasi to Bhagalpur but the officers did not give any cognizance to those documents and seized the goods. The appellant made correspondence with the Commissioner of Customs (Preventive) Patna for release of the goods under seizure. He submits that M/s. Krishna Cargo Movers booked the raw silk yarn as handloom cloths, may be to avoid harassment from different agencies. But this fact was not known to the appellant. There is some discrepancy in the weight also due to lesser payment of freight by the transporter. He submits that silk yarn is neither notified nor specified item under the Customs Act, 1962. Therefore, the entire burden to prove that the goods have been illegally imported into the country is on the Revenue. There having no such evidence in the entire proceedings. Therefore, he submits that seizure and confiscation is unwarranted. In present case the goods are covered by OGL and lot of goods are available and they are available in all parts of the country and without any restriction or prohibition. Under the circumstances, the seizure vis -a -vis confiscation of the raw silk yarn is not maintainable. He relies on the following decisions :

(2.) LEARNED JDR supports the impugned order. He submits that the appellant submitted in proper challan issued by consignor not having dated Sl. Nos. and issued on two different dates whereas the consignment were booked on the same day. There was a mis -declaration of goods on Rly. Receipt. The R.R. does not contain company addresses nor any proof of payment was produced. Therefore, he submits that the goods have been rightly confiscated and he prays that the appeal may be dismissed.

(3.) THE Silk Yarn is not a notified item under Section 23 of Customs Act. Therefore, the burden of proof that the goods were smuggled is on Department/Revenue. The Revenue must prove that the goods were notified or must have been imported from a foreign territory in a clandestine manner. It was held in the case of C.C. and C.E., Chandigarh v. Balkrishna reported in 1987 (29) E.L.T. 65 (Tribunal) = 1987 (11) ECR 325 (CEGAT -NRB) that : Even in case of goods of foreign origin, the onus is on the Customs authorities to prove that the same was smuggled. The Tribunal took into consideration the submission made by the SDR that with the advancement of Science and Technology manufacturing process which are used abroad are also largely used in India even. Failure of the efforts of the claimant of the goods in that case to substantiate its defence was held not to be sufficient to discharge the onus which rested upon the Customs authorities. The cash memo produced by the respondents in that case was found to be false and such fact was held not to improve the case of the Revenue. Relying on the Madras High Court decision in the case of Sha Rikhab Dass Chagan Raj v. C.C.E., AIR 1963 Madras 337, it was held that evidence must be forthcoming to show that the goods were in fact or must have been imported from a foreign territory in a clandestine manner. Accordingly, it was held that even if it is assumed that the goods were of foreign origin that by itself would not be sufficient to order confiscation in the absence of clear evidence that they were smuggled goods. In present case the Revenue has not laid any evidence to establish that the goods were smuggled by the appellant. On the contrary, the appellant has submitted certain documents to establish that they were legally imported by M/s. Priti Silk through Kolkata and Chennai port under proper Bill of Entry. There may be some discrepancy in weight or numbers but it is not established by such discrepancy that the goods were imported in a clandestine manner by the appellant. Failure to show legal acquisition of the yarn in question cannot improve the Revenues case and insisted upon the same would defeat the very purpose of not notifying under provision of Section 123 as held in the case of Motiur Rahman & Others v. C.C. (Prev.), Patna reported in 2001 (47) RLT 353. Similar view was taken in case of Dhun Darabshaw Randeria v. Commr. of Customs (Preventive), Mumbai reported in 2001 (136) E.L.T. 1136 (Tri. -Mumbai) and Chandrakant U. Shah & Others v. Commr. of Customs, Mumbai reported in 1999 (34) RLT 825. The Appellants case is squarely covered by the decision rendered in case of Motiur Rahman & Others v. C.C. (Prev.) reported in 2001 (47) RLT 353 (CEGAT -Kol.). In present case the Revenue failed to establish that the goods were clandestinely imported in India. The burden was cast upon the Revenue to prove the smuggled nature of the goods. The Revenue miserably failed to discharge their burden. The Appeal deserves to be allowed. Consequently, I set aside the impugned order, allow the appeal with consequential benefit to appellant.