ORDER
S.S. Kang, Member (J)
1. The appellants filed these appeals against the adjudication order passed by the Commissioner of Customs whereby 1173 pcs. of ball bearings recovered from the premises of M/s. Associated Bearings Corporation, were confiscated and the Commissioner of Customs gave an option to redeemed the same on payment of redemption fine of Rs. One lakh. The appellants also challenged the personal penalties imposed on S/Shri B.D. Lakhotia and R.K. Lakhotia, partners of M/s. Associated Bearing Corporation.
2. Brief facts of the case are that in pursuance to an information, the business premises of M/s. Associated Bearing Corporation were searched and 1173 pcs. of ball bearing of foreign origin were recovered. Show cause notice was issued to the appellants for confiscation and for imposing penalties and thereafter the adjudication order was passed.
3. The contention of the appellants is that there is no evidence on record to show that ball bearings, in question, are smuggled into India. The ball bearings are not notified goods under Sec. 123 of the Customs Act. Therefore, the onus is on the Revenue to show that the goods, in question, are of smuggled nature. The contention of the appellants is that they had produced the invoices of various firms through which these ball bearings were purchased. The appellants relied upon the following decisions of the Tribunal :
1. Sunil Kumar Agarwal v. CC. [2001 (130) E.L.T. 921 (T) = 2000 (38) RLT 411].
2 Kishore Vrajlal Vithalani & Anr. v. C.C. [2000 (121) E.L.T. 250 (T) = 2000 (41) RLT 488]. 3. Harshad P. Doshi & Anr. v. C.C. [2001 (133) E.L.T. 182 (T) = 2001 (45) RLT 238]. to submit that the onus is on the Revenue in case the seized goods were not notified under Section 123 of the Customs Act. 4. The ld. D.R., appearing on behalf of the Department, reiterates the finding of the lower authority and relied upon the decision of the Tribunal in the case of Rajendra M. Kamdar v. C.C. reported in - 1996 (83) E.L.T. 541 (T). 5. Heard both sides.
6. The admitted facts of the case are that ball bearings are not notified under Section 123 of the Customs Act. Therefore, the onus is on the Revenue to show that ball bearings, seized from the appellants premises, are smuggled one. The appellants produced certain invoices to show the procurement of ball bearings. The Revenue relied upon the decision of the Tribunal in the case of Rajendra M. Kamdar (supra). In this case the person, from whose possession ball bearings were recovered, could not give any explanation in respect of identity of the persons from whom he has purchased the ball bearings nor he had produced any voucher or bills for the purchase of the ball bearings. In these circumstances, the Tribunal upheld the confiscation of the ball bearings. In the present case, the appellants produced bills or invoices of various firms to show the purchase of the ball bearings. Therefore, the ratio of the above decision of the Tribunal is not applicable to the facts of the present case. The Tribunal, in a series of cases, relied upon by the appellants, held that ball bearings of foreign origin by itself is no evidence of smuggled nature of goods. The burden to prove that ball bearings were smuggled goods lies on the Customs department as the same are not notified under Section 123 of the Act. Respectfully following the ratio of the decisions, relied upon by the appellants, the impugned order in respect of confiscation of 1173 pcs. of ball bearings seized from the premises of M/s. Associated Bearing Corpon. and the penalties Sh. B.D. Lakhotia and R.K. Lakhotia are not sustainable, hence set aside. The appeals are allowed.