SYED IBRAHIM Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) BOTH these appeals arise from common order in adjudication passed by the Commissioner of Customs, Bangalore. In his order in Sl. No. 13/02, dated 6 -3 -2002, he has ordered for confiscation of 12,80,000 numbers of cigarettes of Bangladeshi Origin seized from Truck bearing Regn. No. KA 06 8378 and 13,69,250 numbers of cigarettes of Bangladeshi Origin seized vide Annexure B to Mahazar dated 1 -5 -2001 said to have been sold to the appellants by Shri Syed Ibrahim and the same has been ordered for confiscation and the sale proceeds of Rs. 8,10,662/ - is directed to be adjusted towards its value. There is confiscation of lorry bearing No. KA 06 -8378 under Section 115(2) of Customs Act. However, the same has been granted redemption to one Shri Chand Pasha on payment of fine of Rs. 50,000/ - under Section 125 of the Customs Act. The said Chand Pasha is not in appeal before us. There is a penalty of Rs. 8 lakhs on Shri Syed Ibrahim and Rs. 1.50 lakhs on Shri R.D Raja in terms of Section 112(b) of the Customs Act. These two persons are in appeal. There are further penalties on other parties who are not in appeal. The simple contention of the appellants is that the goods are not smuggled ones and they are non -specified goods which have been seized in the town and therefore, the question of its confiscation does not arise, besides imposing penalty. It is their contention that mere fact of foreign origin does not by itself amount to holding that the goods are smuggled ones. In this regard he relied on the following judgments :

(2.) WE have carefully considered the submissions and perused the order. Lorry bearing No. KA 06 8378 was stopped near Mulbagal check post. The officers of DRI examined the 400 boxes of pesticides as declared in the documents available with one Shri Chand Pasha. They were other 40 bundles different from the pesticide boxes whose mention was not available in the transport documents. On examination it was found to contain cigarettes of Bangladeshi origin. Therefore they were seized on the plea that they are smuggled goods. The premises of M/s. Super Trax, No. 5, Unity Buildings, J.C. Road, Bangalore -2 and the godown located at M/s. Bright Electricals, KCD Sheds, Gubbi Mission Press Compound, Bangalore and from their godown cigarettes of Bangladeshi origin were also seized, besides goods of foreign origin like food stuffs chocolates, electrical items. The statements of various persons were recorded and the case was booked for confiscation of these items as having been smuggled ones and after conclusion of the proceedings, these same have been confiscated and penalties have been levied. The contention of the appellants is that the goods are not specified and they are freely available in open market, that in terms of large number of judgments, the burden is on the revenue to show that the goods are smuggled ones and as the same has not been discharged, therefore in terms of the judgment in the case of Naveed Ahmed Khan and others by Final Order Nos. 1934 to 1936/2004, dated 7 -12 -2004 [2005 (182) E.L.T. 494 (Tri. -Bang.)], the penalties are required to be set aside and revenue should be directed to reimburse the value of the goods as noted in the mahazar.

(3.) WE have considered the submissions and find that this very plea was raised in case of town seizure in the case of Naveed Ahmed Khan and the Tribunal by Final Order Nos. 1934 to 1936 dated 7 -12 -2004 [2005 (182) E.L.T. 494 (Tri. -Bang.)] has allowed the appeals and directed the revenue to reimburse the value of the goods as in the mahazar. The submissions made in that case and the citations relied on and findings as recorded in paras 2 to 5 are reproduced herein below :