*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.31 OF 2005 The Commissioner of Customs (Preventive). ..Appellant. -Versus- Ambalal B. Gani. ..Respondent ........... Mr.Vijay Kantharia a/w Mr.R.B.Pardeshi, for the Appellant. None for the Respondent. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 10th February, 2010. P.C. 1 Heard. Perused appeal. 2 The Commissioner of Customs filed this appeal under Section 130-A of the Customs Act, 1962 (hereinafter referred to as “the said Act”). 3 The facts giving rise to this appeal, briefly stated, are that the Customs Officers of M & P Wing, Mumbai searched the premises of the Respondent and seized the goods of foreign origin valued at Rs.4,85,000/-. The show cause notice served on the Respondent was adjudicated by the Joint Commissioner of Customs (Preventive), M & P Wing, Mumbai. The adjudicating authority vide order dated 22.12.2000 inter-alia confiscated the goods valued at *2* Rs.4,85,030/- under Section 111(d) of the Customs Act, 1962 and imposed a personal penalty of Rs.25,000/- on the Respondent under Section 112(b)(ii) of the Customs Act, 1962. The goods valued at Rs.1,87,000/- were disposed of and in respect of the remaining goods valued at Rs.1,84,900/-, an option was given to the Respondent to redeem the same on payment of customs duty @ 61.2% on the assessable value of Rs.1,84,900/- and fine in the sum of Rs.93,000/-. 4 The Respondent preferred Appeal No.47/2002 BP wherein the Commissioner of Customs (Appeals) vide its order dated 17.05.2002 held that the goods seized were not notified goods and were freely available in the market and that the burden of proving their illicit nature of import was on the Appellant which the Appellant failed to discharge. Reliance was placed on the decision of the Tribunal in case of Shri Tayyab Junus Khatri and others Vs. Commissioner (Preventive) dated 08.11.2001 reported in 2002 (139) ELT 0433 (Tri-Bom.). 5 The Appellant-Revenue against the above order dated 17.05.2002 had preferred appeal before the Customs, Excise & Service Tax Appellate Tribunal (WZB), Mumbai. 6 The Tribunal by its order dated 31.01.2003 was pleased to allow the appeal. The matter was remanded to the *3* Commissioner of Customs (Appeals) observing that it had glossed over the fact that some of the goods were notified under Section 123 of the Customs Act and did not give any weightage to the fact that the Appellants did not produce any document relating to large quantities of imported goods which were found in their (stock) premises. The Appellant/Revenue did not challenge the order of remand dated 31.01.2003 with the result it became final and conclusive. 7 The Commissioner of Customs (Appeals) after remand reheard the appeal and decided it by an order dated 24.02.2004. It upheld the order of confiscation in respect of wrist watches and allowed the release thereof on payment of fine and also reduced the penalty which was imposed on the Respondent. In respect of remaining goods, which were found to be non-notified, the Commissioner of Customs (Appeals) set aside the order of confiscation and penalty was reduced from Rs.14,000/- to Rs. 5000/- and Rs.25,000/- to Rs.10,000/-. 8 The Revenue, not satisfied with the above order, preferred an appeal to the Customs, Excise & Service Tax Appellate Tribunal (WZB), Mumbai being Appeal No.232, 233/2004-Mum. The Tribunal vide its order dated 17.12.2004 dismissed the appeal for the reasons recorded therein. *4* 9 The Revenue feeling aggrieved has preferred this appeal against the order of the Tribunal dated 17.12.2004. This appeal was admitted vide order dated 28.09.2005 to consider the following substantial questions of law:- (1) Whether the Tribunal can weigh the sufficiency of evidence without discussing and/or examining the evidence available? (2) Whether in the facts and circumstances of the case, the department has discharged the burden of proof cast upon it in respect of non notified goods. If so, whether the Tribunal was correct in setting aside the confiscation and penalty? 10 The Tribunal in its order of remand dated 31.03.2003, had set aside the order of the Commissioner of Customs (Appeals) and had remanded the matter back for decision taking into account the fact that goods were covered under the provision of Section 123 of the Customs Act. The finding of fact recorded in remand order on appreciation of evidence having became final and conclusive it cannot be disturbed unless it is found to be perverse or vitiated due to non-consideration of any evidence having bearing on the issue in question. No such case is made out. The Tribunal could not have gone into the sufficiency of evidence on which the finding of fact has been recorded by the Commissioner of Customs (Appeals). 11 As has been held by the Apex Court in the case of Collector of Customs, Madras and others vs. D. Bhoormull, 1983 *5* ELT 1546, the burden of proof was on the Department to prove that the non-notified goods seized by the Customs Authority are smuggled goods. In the present case the Department has failed to discharge the said burden and therefore, the Commissioner of Customs (Appeals) and the Tribunal in its final order dated 17.12.2004 were right in holding that the non-notified goods could not be confiscated and no penalty could be levied. 12 In view of the above position, we answer the questions in favour of the Respondent and against the Revenue/Appellant. There being no substance in the appeal, the same is dismissed. No order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)