- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CUSTOMS APPLICATION NO.17 OF 2002 AND CUSTOMS APPLICATION NO.19 OF 2002 ... Commissioner of Customs (Preventive) Mumbai ...Applicant v/s. Shri Tayyab Yunus Khatri & Anr. ...Respondents ... Mr.R.V.Desai with Ms.S.V.Bharucha for the Applicant. Mr.A.S.Rao for the Respondent. WITH CUSTOMS APPLICATION NO.20 OF 2002 ... Commissioner of Customs (Preventive) Mumbai ...Applicant v/s. M/s.New Alfa & Anr. ...Respondents ... Mr.P.S.Jetly with Mr.Y.R.Mishra for the Applicant. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 29TH SEPTEMBER, 2008 P.C.: All these appeals were admitted on 23-2-2005 on the following questions of law:- 1. Whether Tribunal can weigh the sufficiency of evidence without discussing and or examining the evidence available? - 2 - 2. Whether in the facts and circumstances of the case, Department has discharged burden of proof cast upon it in respect of the non-notified goods? If so, whether Tribunal was correct in setting aside the confiscation and penalty? 2. The dispute in these applications relates to the order passed by the Tribunal whereby the notified goods confiscated by the Adjudicating Authority have been remanded back for denovo consideration & in respect of the non-notified goods the Tribunal has directed clearance without payment of penalty. 3. As regards the notified goods, since the matter is remanded back, there can be no dispute. As regards the non-notified goods the tribunal has held that the Respondents have produced documents in the form of entry bills etc. to show that the goods were legally imported or legally acquired by the Respondents. However, on the perusal of the order passed by the Adjudicating Authority it is seen that there were no such documents produced by the Respondents before the adjudicating authorities. In this view of the matter, the decision of the Tribunal appears to be contrary to the facts on record & hence - 3 - the applications are allowed in respect of non-notified goods. The Tribunal is directed to forward the statement of case raising aforesaid questions for the opinion of this court as expeditiously as possible. The applications are disposed of in the above terms with no order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.) - 4 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO.2732 OF 2002 ... M/s.New Alfa & Ors. ...Applicant v/s. Union of India & Anr. ...Respondents ... Ms.Doiphode i/b Mr.V.M.Doiphode & Co. for the Applicant. Mr.A.S.Rao with Mr.Y.R.Mishra for the Respondents. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 29TH SEPTEMBER, 2008 P.C.: 1. This Writ petition is filed seeking implementation of the order passed by the tribunal - 5 - regarding non-notified goods, which are subject matter of Customs Applications Nos.17 & 18 of 2002. 2. By an interim order dated 19th April 2003 the Respondents were directed to release the goods on the Petitioners furnishing a bank guarantee of a nationalised bank. Accordingly the Petitioners have furnished a bank guarantee of Rs.6,66,427/-. Since the Customs Application No.17 of 2002 and Customs Application No.19 of 2002 filed by the Revenue in respect of the goods which are also subject matter of the present Writ Petition, have been allowed and statement of the case is called for from the Tribunal, the present Writ Petition is disposed of by directing the Petitioners to keep the bank guarantee furnished pursuant to the interim order alive till the reference called for is heard & disposed off by this Court. 3. Writ Petition is disposed of accordingly. No order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)