COMMISSIONER OF CUSTOMS, HYDERABAD Vs. NAULAKHA REFRIGERATION

JUDGEMENT

(1.) THIS revenue appeal arises from OIA No. 40/04 dated 31 -3 -04 wherein the Commissioner (Appeals) has held that Revenue has failed to discharge the burden to establish that the seized CFC gas (refrigerant 22 and refrigerant 12) filled in 59 numbers of empty cylinders, compressor and hose pipe were of foreign origin. These goods were seized from the godown of the respondent and revenue proceeded against them on the ground that the assessee was in possession of goods of foreign origin and having imported without licence. The importer had produced purchase vouchers from the dealers for having purchased in the market. However, his statement has not been accepted by the Original Authority. Nevertheless, the Commissioner noted that the adjudicating officer has not obtained any expert opinion and got the test/chemical analysis to prove the country of origin of such goods. He has also noted that the investigation of this issue alone is Nil. Revenue contend that there was no need to have the expert opinion obtained and cited Madras High Court judgment in the case of Commissioner of Madras v. Govindasamy Ragupathy - 1998 (98) E.L.T. 50 wherein the Madras High Court deciding a case of smuggling of gold biscuits had held that no much importance need be attached to expert opinion to decide a case of such nature as one in hand since it is well settled that expert opinion are neither infalliable or conclusive proofs. Learned SDR submits that the goods are not available in the market and it is an imported item only. Therefore, the fact that such gas was found in the cylinders maintained by the respondents, the initial burden has been discharged by the Revenue and it was for the respondents to have shown that the goods were not of smuggled nature. He also refers to Para 12 of OIO which prohibits the import of CFC 12 and CFC 22.

(2.) LEARNED counsel submits that the gas was available in the market and he has purchased the same and produced the evidence that the gas was not of foreign origin. They have discharged their burden by proving that the gas was not of foreign origin and of smuggled one.

(3.) ON a careful consideration, it is seen that the goods were not intercepted during the process of smuggling into India. They were found in the godown of the respondents. The respondents contention is that they have purchased the goods from the open market and had produced the invoices. The investigating authority should have made further investigations in the matter and should have gone to the root of the case by examining the person from whom these goods were purchased. This would have disclosed the source from which the goods have come to India. Therefore, the Commissioners finding that the investigation is NIL is a correct finding and cannot be faulted even if gas had not been tested. It was for the revenue to discharge the burden that the goods were of foreign origin which has not been done in the present case. The cited Madras High Court judgment is not applicable to the facts of the present case. As in that case, the seized goods namely gold biscuits had carried foreign markings and hence it did not require any test to be done by any expert. The situation is different in the present case. The Order is legal and proper and the same is upheld. There is no merit in this appeal and the same is rejected.