SHRI DALIP KUMAR JAISWAL Vs. C.C.E.

JUDGEMENT

(1.) HEARD both sides, the appellant tiled this appeal against the Order -in -appeal passed b Commissioner (Appeals) on 21.11.98 silk yarn of Chinese was recovered from the van by the police and the appellant, was in the van at the time of interception. Thereafter van with Chinese silk yarn was handed over to the Customs authorities and on investigation, present appellant disclosed that the part of his residential premises was given on rent to Shri Girish Sharma and Anil Sarawgi and six bags of Chinese silk was also found in the premises of the appellant which was as per appellant given on rent. The silk recovered from the van and premises of the appellant was seized on the reasonable belief that it is smuggled into India. After issuing a SCN the adjudicating authority confiscated the seized Chinese silk and. imposed penalty of Rs. one lakh on the appellant under Section 112 of the Customs Act.

(2.) THE appellant is only challenging the imposition of penalty. The contention of the appellant is that he is not concerned with the seized Chinese silk yarn. On 24.11.98, he was merely present on spot when Chinese silk yarn was recovered from the van. the appellant forcibly put into the van and was taken to the police station and subsequently handed over to the Customs officer. Before the Customs, the appellant made a detailed statement stating that he is not concerned with the Chinese silk yam recovered from the van and he was forcibly put into the van. But in his statement he disclosed that one portion was rented to some other person and searched of that portion regarding the key was produced by the appellant. Six bags of Chinese silk yarn was recovered.

(3.) THE contention is that there is no evidence on record to show that yarn in question is smuggled in nature or is of Chinese origin. At the time of seizure, sample was taken out no test report was given to the appellant. it is also contended that silk yarn was not notified goods Hence the onus is on revenue to show that the seized silk yarn is smuggled in nature and in absence of this evidence, the penalty imposed on the appellant is not sustainable. In respect of the yarn recovered from the premises of the appellant, the contention is that as the appellant has given the premises on rent, therefore, he is not aware of the fact that some yarn was stored there.