JUDGMENT
K.D. Mankar, Member (T)
1. The instant appeal is directed against the order-in-appeal passed by the commissioner (A), who rejected the appellants appeal against the order of the Additional Commissioner and confirmed the absolute confiscation of certain goods of foreign origin seized from his workshop. Besides a penalty of Rs. 30,000/- was also imposed.
2. Heard both sides.
3. It is noticed that, 2 pieces of compressors valued at Rs. 4000/- CIF, MV Rs. 12,000/- along with some other components of car air conditioners of foreign make, were seized by the Customs officers in 1990. The 2 pieces of compressors were allegedly a part of the smuggled goods, which one person name siddique, had in collusion with customs officers, managed to get cleared as unaccompanied baggage, on payment of nominal custom duty, at grossly under declared value. The appellant’s plea was that, he purchased the compressors from the said person believing that the said goods are validly imported. In the adjudication order, nothing is forthcoming on record to impute that, the appellants had any knowledge of the said compressors being of smuggled nature, for the reason that such goods were available in the market through valid imports. Therefore, I find that no penalty can be imposed on the appellants on this count.
4. So far as confiscation of the said compressors is concerned, since the compressors in question had been traced and linked to clearance of unaccompanied baggage from customs unaccompanied baggage central, such clearance amounts to smuggling. The confiscation is justified, but not the absolute confiscation since the goods are not prohibited. Therefore, I hold that the order of absolute confiscation is without justification and the appellants need to be given a chance to pay appropriate redemption fine.
5. So far as seizure of other goods is concerned, I find no valid ground to uphold the same. The department is required to prove its case in a positive manner, rather than asking the appellants to prove the negative. Just because the goods bear a foreign marking, that is no reason to require each and every person to show their lawful importation. Therefore, I hold that the appellant’s failure to show the legal importation of the goods seized from his premises cannot lead to their confiscation as attempted by the lower authorities. In this connection, I would refer to the CEGAT Judgment in the case of Bombay Bangalore Freight Carriers Pvt. Ltd. Vs. CCE New Delhi Reported in 2004 (163) ELT 213 (Tri-Del). Consequently, I hold that, the seizure and absolute confiscation of the remaining items, seized from the appellant’s workshop is without any authority of law and the same is also set aside.
6. Accordingly, the appeal of the appellant is allowed in respect of all the items, other than the 2 car compressors purchased from Mr. Siddique. As regards the 2 car compressors in question of CIF value of Rs. 4000/-, I modify the order of their absolute confiscation, to confiscation with an option to redeem the same on payment of fine of Rs. 1000/-
7. The appeal is partly allowed in these terms and consequently the orders of the lower authorities are modified accordingly.