PAWAN ENTERPRISES Vs. COMMISSIONER OF CUSTOMS (PREV.)

JUDGEMENT

(1.) THIS is an Appeal against the captioned order passed by the Commissioner of Customs (Prev.) Bombay in which he ordered absolute confiscation of 1243 packages of primary nickel strips totally weighing 10,026 kgs. valued at Rs. 35.09 lacs under Section 111(d) of the Customs Act, 1962 and also levied a penalty of Rs. 5.00 lacs on the appellant.

(2.) OFFICERS of Marine and Preventive Wing of the Customs (Prev.) Com - missionerate, Mumbai searched the godown premises of the M/s. Pawan Enterprises situated at Bhiwandi, but nothing incriminating was recovered from the premises. From another godown, according to information given by Shri Anil Mishra, Supervisor of the godown, the following goods were detained from the godown : (i) 162 pieces of Copper Wire Bars. (ii) 1,094 pieces of Antimony Ingots weighing approximately 25.162 kgs. (iii) 144 bags of Nickel Sheets weighing 9,648 kg.

(3.) DR . Kantawala the Ld. Advocate for the appellant in Appeal No. C/8/96 -BOM argued that the seized goods were neither notified under Chapter IV -A nor specified under Section 123 of the Customs Act. Therefore, the burden to prove their smuggled character rests solely on the Department and which burden had not been discharged by it. On the contrary, it is argued according to findings of the Commissioner, that the Appellant was not instrumental in smuggling an item Nickel which is one of the items which is freely importable under OGL, as there is neither any prohibition nor restriction against its import in the Import Policy for the relevant time. In fact Nickel is freely importable under Chapter 75 of the relevant import policy as is reflected therein. Hence it is argued by Dr. Kantawala, that provisions of Section 111(d) of the Customs is not applicable in this case. He argues further it is true that the word "INCO", are mentioned in the Nickel ingots and that itself will not show that they are of Foreign origin. The burden of the Department has not been discharged fully, therefore, he also stated that mere Foreign origin of the goods is knot sufficient in law to shift the burden which is otherwise on the department. The facts and circumstances of the case, it is further argued, that the department had not adduced any direct evidence to draw only conclusion that the appellant was responsible for the smuggling of the stock seized. It is further, argued by the Ld. Counsel that even if the bill produced by the appellant was not correct, since the item was not a notified item, merely because, it was foreign goods in the absence of any other evidence, it cannot be held that the officers had reasonable belief that they were smuggled goods. Alternatively it is argued by him that the adjudicating authority erred in law by not giving the option for redemption of the goods on payment of redemption fine as held by Supreme Court reported in AIR 1987 S.C. 1982. He also cites the decision of Bombay High Court in Santosh Gupta v. Union of India - 1990 (48) E.L.T. 210 (Bom.) to show that burden is on the Department. He also cited the decision of the Tribunal in Bon -Ton Sight Care v. Collector of Customs - 1993 (64) E.L.T. 239 (Tribunal) where the Tribunal held that merely because, particulars in certain bills not tallying in respect of some goods there cannot be any confiscation.