ORDER
J.H. Joglekar, Member (T)
1. On hearing both sides I find that the law being well settled, the appeal itself could be disposed of. This was so done.
2. The respondent owns a motor garage. Search in these premises resulted in resulted in seizure of seven foreign made car engines as well as six cars fitted with such engines. These engines were used and admittedly of foreign origin. The respondent identified the owners of the cars. Bills showing purchase of the engines were produced. In some cases the bills were stated to be in the possession of the owners of the cars who had given the cars for refitment. He gave the location of the persons from whom the engines had been brought. The case was adjudicated by the Additional Commissioner resulting in confiscation of the engines and imposition of penalty. The Commissioner (Appeals) in his order observed that the goods were neither listed under section 123 of the Customs Act, 1962 nor were they prohibited in terms of section 11 of the Act. He set aside the orders of confiscation. He stated that the engines were openly available in the market and they were presumed to be duty paid. Against this order of the Commissioner, the present appeal has been filed.
3. Shri Choubey cited the case law relied upon in the memorandum of appeal. I have seen the case law. In the case of Kamaljit Singh Chadha & two others vs. ACC(P) 1986 (25) ELT 1001 the Tribunal had observed that there was a clear admission made by the concerned person of illegal importation. In the case cited in 1991 (52) ELT 251 the importer had failed to produce necessary evidence of purchase. These two citations do not relate to the present case. In the third cited case in 1992 (61) ELT 676 the goods were notified under chapter IV A of the Act and thus this judgment is also not relevant. The reliance on 1983 (12) ELT 849 is similarly misplaced inasmuch as there was no admission in the case on hand.
4. It is correct that the import of used diesel engines is prohibited. It is also correct that hundreds of such engines are imported every year in India. These engines are seized, confiscated and are allowed on payment of redemption fines because these are not prohibited goods but are restricted goods in terms of section 125 of the Act. Once these goods are procured by the importers on payment of a fine no stigma is attached to these goods. These can be openly bought and sold and such engines are routinely bought and sold for the last 25 years in spite of the restriction. In the present case the engines were purchased on the strength of proper bills. The name of the owners of the shop and telephone numbers of the owners were given by the respondent. The order of the Assistant Commissioner shows that in case of some of the bills an enquiry was conducted and that the firms were found to be in bogus address. This allegation does not figure in the show cause notice. The proceedings however do not show that these enquiries were revealed tot eh respondent. In a number of judgments it has been held that where imported goods are not notified or where they are not falling under section 123 of the Act, sufficient evidence has to be produced by the department to establish the smuggled nature of the goods. (2000 (117) ELT 182). Curiously, in this judgment the Tribunal recalled the earlier judgment reproduced in 1990 (50) ELT 91 wherein the Tribunal remarked that the allegation that the firm whose invoice was being cited was a fictitious firm would create suspicion but would not but would not create conviction that the goods were illegally imported. The same situation prevails in the present case.
5. In view of the fact that the market is flooded with old engines which are cleared on payment of duty and fine, I find that the observation of the learned Commissioner that these goods are deemed to be duty paid is correct. I find that the Commissioner was correct in arriving at his conclusions. This appeal from the Revenue is dismissed.
6. The stay application also stands discharged.
(Dictated in Court)