ORDER
J.H. Joglekar, Member (T)
1. In this case one Video camera with accessories was seized from the appellants and was confiscated absolutely in adjudication proceedings. However, no penalty was imposed. The orders of confiscation under Section 111(d) and 111(p) were upheld in toto by the Collector (Appeals) resulting in the present appeal before the CEGAT.
2. Shri K.K. Anand, ld. Advocate, arguing for the appellants stated that the appellants had given the name of the person, namely, Shri P.K. Vashist from whom he had purchased the goods. Copies of clearance documents were also filed. The Department had not made any attempt to verify the truth in the evidence tendered by them. The ld. Advocate stated that the goods were used. The charge of illegal importation had not been proved and for contravention of the provision of Chapter (VIA), the orders of absolute confiscation were too harsh. Advocate stated that the fact that no penalty was imposed would show that the adjudicating authority was convinced of the fact that the camera was not smuggled. He referred to another Order-in-Appeal No. 247-Cus/JPR/91 dated 16-12-1991 in which similar goods in identical circumstances were released by the same Collector on payment of a fine. He requested for redemption of the goods on [payment of] fine.
3. Shri S.N. Ojha, JDR, stated that the citation of the other order of this Collector was not relevant. He stated that the appellants had initially claimed to have purchased the goods from one Mr Makhija who denied this statement. Much later after nearly 7 months by way of reply to the Show Cause Notice, the appellants had claimed to have bought the goods from one Shri Vashist. There is no evidence of sale by Shri Vashist to the appellants. He further argued that the details of the video camera given in the panchnama are not reflected in the Baggage receipt. Therefore, there is no correlation between the seized goods and the goods imported by Shri Vashist. He urged that the lower order should be upheld.
4. I hve carefully considered the various pleas made before me.
5. At the material time video camera was covered under the Notification issued under Section 11(b) and, therefore, the appellant was required to perform the functions prescribed in Chapter 4A of the Customs Act, 1962. Not following all these instructions would render such goods to confiscation under the provisions of Section 111(p). The orders for confiscation made under this provision are upheld. However, the lower order does not disclose any grounds to sustain the confiscation under 111(d) of the Act. Unless any goods are notified under Section 123, the burden of proving their illegal importation rests on the Department. Such confiscation cannot be based merely on the fact that the person from whom the goods have been seized has failed to establish the legal importation of the goods.
6. For these reasons I deem it proper to accede to the request of the ld. Advocate to give an option to the appellants for redemption of the goods. I, therefore, set aside the order of absolute confiscation of the goods and direct the appellants to redeem the same on payment of fine of Rs. 14,000. The fine is in addition to the duty leviable on the goods.
7. This appeal is thus partly allowed.