KISHORE KUMAR Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) BOTH the appeals arise from common Order -in -Appeal No. 390/2003 -Cus (B), dated 6th November 2003, passed by the Commissioner of Customs (Appeals), Bangalore holding the Order -in -Original No. 23/2002 -Cus. Adjn., dated 30 -9 -2002 ordering confiscation of goods of foreign origin valued at Rs. 8,60,100/ - in terms of Section 111(d) of Customs Act, 1962, however granting release on payment of redemption fine of Rs. 1,50,000/ - ; and there is a penalty of Rs. 50,000/ - on Shri Kishore. The appeal of Mr. Misrimal is against the same order of the Commissioner (Appeals), however arising from the Order -in -Original No. 24/2002 -Cus. Adjn., dated 30 -9 -2002, passed by the Additional Commissioner ordering for confiscation of goods of foreign origin valued at Rs. 7,77,000/ -, however granting release on payment of redemption fine of Rs. 1,50,000/ -, and there is a personal penalty of Rs. 50,000/ -. The contention of the appellants is that the goods cannot be confiscated as they were seized from the shop where the goods were displayed for sale. The goods were purchased from the local market and they were of freely importable into India and are non -notified goods and calculators, notified item was purchased from licit imported source. They contended that the Revenue has proceeded solely on the ground that the assessee has not produced any purchase bill/receipt and no document has been produced on duty paying nature. The appellants pointed out that nowhere in the statement or in the mahazar, they have stated that the goods are smuggled one and illicitly brought into India. They have clearly stated that the goods were purchased from local market from a bona fide person who have licitly imported. It was their contention that as the goods are freely available in the market, the Revenue cannot seize the same which was kept in a shop for sale. They said that the seizure of the goods has no authority of law and hence liable for release without payment of duty in the light of several judgments, particularly this Bench of the Tribunal judgment rendered in the case of Shri Naveed Ahmed Khan and Ors. by Final Order No. 1934 - 1936/2004, 2005 (182) E.L.T. 494 (T), dated 7th December 2004. The Tribunal after due consideration of several judgments of the Apex Court and the Lower Courts has held that non -notified goods which are freely available in the market cannot be seized merely because of foreign marking. Hence allowed the appeal. Further reference is made to this Bench of the Tribunal ruling rendered in the case of Shri Govind Purohit v. Commissioner of Customs, Bangalore [Final Order No. 1172/2003, dated 2 -9 -2003] wherein in similar facts and circumstances of the case, it was held that if the burden to prove the goods being smuggled is not discharged by the Department and the goods were not notified, they are not liable to be seized. The learned Counsel filed copy of large number of judgments in his support besides the case laws cited above. He has admitted that all the judgments have been considered by the Tribunal in the case of Shri Naveed Ahmed Khan and Ors. (supra).

(2.) THE learned DR re -iterated the findings of Commissioner (Appeals). He submits that the seized goods are of foreign origin. The appellants have not produced any purchase bill/receipt document, vouchers, etc. and they have not established that the impugned goods were locally purchased. Hence the circumstance shows that they are smuggled goods and the burden lies on the assessee to prove that the impugned goods were not smuggled.

(3.) ON a careful consideration of the submissions made by both the sides and on perusal of records, it is very clear that the goods were seized from the shop where the same were displayed for sale. The appellants nowhere in their statement and the mahazar have admitted about they have indulged in the act of smuggling these goods. The appellants contented that they had purchased the goods from bona fide person bringing the goods in the market. They had purchased the goods only from the bona fide source. Therefore in terms of the judgments cited above, we cannot hold that the goods which are non -notified and freely available in the market could be seized. The Department has not discharged the burden to prove the items being smuggled ones. The learned JDR pointed out the Annexures of both the orders and submitted that there is seizure of calculators which are required licence for import. He submitted that the notified goods, particularly the calculators can be confiscated and fine and penalty to that extent be fixed. On a careful consideration, we find that the submissions of the learned DR so far as the calculator is concerned, is correct as licence is required to clear the calculators. However it is not a case of the appellants that they were imported without licence. Their case is that they have purchased from a bona fide baggage passenger and from the market and that they have not smuggled it into India. In the circumstances like these, the Tribunal has granted benefit of doubt and directed the authority for release of the goods as the Revenue has not discharged the burden to prove that the goods are smuggled one. Respectfully following the ratio of the judgments cited above, the impugned order is set aside and the appeals are allowed with consequential relief.