ORDER
R. Jayaraman, Member (T)
1. This is an appeal against the order in original No. 80/92 dated 6-4-1992 passed by the Additional Collector of Customs (P), Bombay.
2. The facts of the case are that the appellants had stored some imported chemicals in the godown of M/s. Manji Sunderji, which were seized by the Customs Authorities. The goods seized belonging to the appellants were 32 drums of Acrylamide and 18 drums Propylene Glycol. In the adjudicating proceedings held by the Addl. Collector, he ordered release of 18 drums of Propylene Glycol, holding that they had been purchased from M/s. Tata Exports, who had validly imported the goods. However, as regards acrylamide, he held that neither the partner of the appellant firm nor the person from whom these goods were purchased by the appellant firm, had any valid document to show licit import of the chemical and hence ordered confiscation but allowed redemption on payment of duty and 30% fine. He also imposed a penalty of Rs. 10,000/- on the appellants. The present appeal is against the said order.
3. After hearing both the sides, we are allowing the appeal for the following reasons :-
The undisputed position is that the goods ordered confiscation are neither notified under Section 123 of the Customs Act nor do they attract the provisions of Chapter IVA of the Customs Act. There is no averment by the Deptt. that the goods are banned for import. The appellants have stated in their very first statement that they have purchased the goods in question from M/s. Prabhat Chemical Industries. Though they did not produce the bill at the time of giving the statement, they have subsequently produced the bill for the same. The seller Shri John Popet has also, in a statement, confirmed the sale and has stated that he purchased the goods through brokers from the local market and a quantity of 250 Kgs. was earlier purchased from the appellants. In the context of the above undisputed factual position, one can not jump to the conclusion that the goods are smuggled ones, without leading further evidence in this regard. The goods are not notified under Section 123 of the Customs Act. They are claimed to have been acquired through normal trade channel and even payment is found to have been made by cheque by the appellants. Hence there is a heavy burden cast on the Department to establish that the goods are of such a nature that are not allowed import and the possible source of acquisition can only be through smuggling. No such factors are discussed in the order nor pleaded before us. Hence merely because the original documents of import and particulars of duty payment have not been produced, it cannot be concluded that the goods are smuggled ones. It is a settled law that suspicion, however grave, cannot substitute proof. Here, even circumstantial evidences to show that the goods have been acquired illicitly are wanting. Hence we find that the order of the Additional Collector, holding the goods to be smuggled and ordering confiscation and demanding duty is not legally sustainable. Hence we allow the appeal and direct the release of the consignment forthwith. We also set aside the penalty imposed on the appellants.