ORDER
Archana Wadhwa, Member (J)
1. All the four appeals are being disposed of by a common order as they arise out of the same impugned order of the Commissioner of Customs, Kolkata vide which he has absolutely confiscated 62,000 pcs of ball bearing of foreign origin. A Maruti Van which was found to be loaded with some cartons of ball bearing has also been confiscated with an option to the owner to redeem the same on payment of redemption fine of Rs. 50,000/-. In addition, a personal penalty of Rs. 1,00,000/- has been imposed on Shri Harshad Shah and penalty of Rs. 20,000/- each has been imposed upon Shri S.P. Chitlangia and Shri Sujit Jaiswal.
2.1 As per the facts on record the Customs Officers, on 8-5-2000, found one Maruti Van standing in front of one godown located in Dum Dum Park, Kolkata. The Maruti Van was loaded with some cartons of foreign origin of ball bearing. Entertaining a doubt the Officers searched the godown premises and recovered 62,000 sets of ball bearing of Chinese origin. A diary containing some information was also recovered. Shri S.P. Chitlangia and Shri Sujit Jaiswal were present in the said godown. However, as they could not produce any documents showing legal acquisition of the ball bearing, the Officers seized the ball bearings.
2.2 Shri Chitlangia and Shri Jaiswal in their statement recorded on 8-5-2000, in response to summons deposed that Shri Harshad was the real owner of the ball bearing. He is the importer and trader dealing in ball bearings and having his office at Canning Street, Kolkata. The said two persons
were acting as a commission agent for the sale of the ball bearing.
2.3 As a result of disclosure made by the said two persons, the business premises of Shri Harshad were put to search but nothing incriminating was recovered from there. As Shri Harshad Shah was away to Bombay for his treatment, his statement could not be recorded. Subsequently, Shri Harshad Shah claimed the ownership of 39,000 pcs. of ball bearing of foreign origin and also produced a bill of Panihati Bengal Chemical Cooperative showing the purchase of the said number of ball bearing. No claim was made by him in respect of balance pieces.
2.4 The Revenue made some further enquiries and found that the telephone numbers mentioned in the diary recovered from the godown premises was of different firms at Kathmandu, Nepal dealing with ball bearings. Efforts were also made to contact the various purchaser of ball bearings mentioned in the diary, but without success.
3. Based upon the above facts, the show cause notice was also issued to all the concerned parties, proposing confiscation of the ball bearings, Maruti Van and imposition of personal penalties upon the various persons. The said show cause notice culminated into the impugned order passed by the Commissioner.
4. I have heard S/Shri P.K. Das, H. Kundalia and B. Mukrerjee, Advocates for the appellants and Shri D.K. Bhowmik, ld. JDR for the Revenue.
5. After giving my careful consideration to the submissions made by Shri Harshad Shah and after going through the impugned order of the Commissioner, I find that the said appellant had only claimed 39,000 pcs. of ball bearings out of the total seized 62,000 pcs. of ball bearings and have placed on record the documents showing the purchase of the said ball bearing from M/s. Panihati Bengal Chemical Co-operative Stores Ltd. under their challan dated 21-4-2000 for which a cheque/demand draft dated 29-4-2000 favouring M/s. Panihati Bengal Chemical Co-operative Stores Ltd. was issued by the appellants as an advance towards an offer for the purchase of lot of bearings procured by them was of Customs auction or by direct sale made by the Customs House to the said Co-operative. The adjudicating authority is not doubting the correctness of the said purchase bill produced by Shri Harshad Shah but is concluding against him on the ground that he is claiming only a portion of ball bearings and not rest. He has further observed that the appellant had also sold a number of pieces during the period of purchase of the goods from the said Co-operative Society till the seizure was made and as such it may be possible that the goods purchased under the said bill I have already been sold by him. I am afraid that the above reasoning of the adjudicating authority is purely based on assumption and presumption and not any legal and sound footing. I find that the appellants have also strongly contended that the ball bearings are freely importable in terms of Import Policy and without any end-use conditions and or any restrictions or prohibitions. They are freely available in the market and the appellant is engaged in procuring the same from various Customs House auction or from various Cooperative Society. The ball bearings are also neither notified under Chapter IV A or Section 123 of the Customs Act, 1962. As such, the onus to prove that the bearings in question have been illegally smuggled into India lies heavily
upon the Revenue. I find force in the above submissions of the appellants. There is no direct evidence on record showing that the ball bearings claimed by the appellants have been illegally smuggled into India. Merely because the appellants have claimed the ownership of a part of bearings do not lead the ipso facto conclusion that the bearings in question were smuggled, inasmuch there is nothing on record to show that the godown in question belonging to the appellant and all the ball bearings lying therein were related to the appellant. Admittedly the appellant is dealing with ball bearings and would be having connection with the various parties for the sale of the ball bearings in question. For the similar reasons having the addresses of Kathmandu parties dealing in the same commodity is no evidence to show that the ball bearings seized by the Customs Officers were smuggled. As such, I am of the view that the confiscation of 39,800 pcs. of ball bearing belonging to Shri Harshad Shah is not in accordance with law. The confiscation of the same is set aside. For identical reasons, penalty of Rs. 1,00,000/- imposed on Shri Harshad Shah is also set aside.
6. The adjudicating authority has also confiscated the Maruti Van engaged by Shri Chitlangia and Shri Jaiswal for transportation of the goods and found to be loaded with some cartons of ball bearings under the provisions of Section 115 of the Customs Act 011 the ground of connivance of the owner of the Maruti Van for transportation of this smuggled goods. Inasmuch as I have already set aside the confiscation of the ball bearings, I do not find any justification for confiscation of the Maruti Van. The same is accordingly set aside.
7. For the reasons recorded above, I also set aside the personal penalty of Rs. 20,000/- imposed on other two appellants, Shri S.P. Chitlangia and Shri Sujit Jaiswal.
8. Before parting, I would like to refer to the decision in the case of Ravi Mittal v Commissioner of Customs, New Delhi reported in 2000 (117) E.L.T. 182 (Tribunal) relied upon by the appellants wherein the confiscation of the ball bearing was set aside by observing that the same being not notified under Section 123 of Customs Act, 1962, burden of proof as to illicit nature of goods lies on Department and there being no sufficient evidence, burden cannot be said to have been discharged. I have already observed that there is no evidence in the present matter and the ratio of the above decision applies. The appellants have also referred to the Tribunal’s decision in the case of Dungarmal Mohta and Ors. v. Commissioner of Customs (Prev.), W.B. reported in [2002 (140) E.L.T. 256 (T) = 2001 (47) RLT 345 (CEGAT – Kol.)]. Wherein the Tribunal’s decision observed that when the goods are available in plenty in India and are not notified under Section 123 the confiscation of the same without any positive evidence of their smuggled character is not in accordance with law.
9. In a nutshell, all the appeals are allowed with consequential relief
to the appellants.