ORDER
P.K. Desai, Member (J)
1. The appeal is filed by the Revenue against the order in appeal No. S/49-135/86-T, dated 27-3-1981 setting aside the order passed by the Assistant Collector.
2. The respondents gave an advertisement for sale of movie camera and acting thereon, the Department made enquiry about the licit import and though the respondents gave a statement of having received it from an individual who had imported the same, could not produce any documentary evidence. Subsequently, the respondent modified his version and stated that the importer had gifted the camera to his relative and he had purchased it from the said relative and that the importer had died in a air crash and he was not in a position to produce the documentary evidence. The Assistant Collector did not accept the version, however, in the appeal before the Collector (Appeals), the said authority came to the conclusion that the camera was at the relevant time, neither a notified item nor an item specified under Section 123 of the Customs Act, and it was for the Department to establish the smuggled nature thereof. He, therefore, set aside the order of confiscation and imposition of penalty. The Department has come up in appeal against the said order of the Collector (Appeals) before the Tribunal.
3. The respondents have filed a cross-objection by way of reply. Though, notice of hearing has been served on the respondents none has appeared during the hearing. However, after hearing Shri Misra, the ld. SDR, it is not felt necessary to adjourn the matter.
4. Shri Misra, the ld. SDR, submits that the respondents have not produced the documentary evidence to establish the licit import of the camera and hence the liability to confiscation and imposition of penalty survives. He also pleads that the respondents had put the imported camera for sale within the prohibited period.
5. Considering the submission made and going through the records, the Collector (Appeals) has considered the aspect of licit import and the burden of proof. The undisputed position is that the camera at the relevant time was not a notified item and that the Department have not established the smuggled nature of the same. It is also not established as to whether the camera was put to sale within the prohibited period, as the actual date of import is not available. In that view of the matter, it is not considered necessary to interfere with the order passed by the Collector (Appeals) which appears to be in conformity with the legal position. The appeal from the revenue is therefore, rejected.
6. Since the cross-objections are in the nature of reply, no order is passed.