AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.63 OF 2008 Union of India through the Commissioner Customs (Prev.) ..Appellant. V/s. M/s.Amit Sales Corporation ..Respondent. Mr.R. Asokan for the appelant. Ms.Shilpa Balani i/by Mr.Anil Balani for the respondent. CORAM : P.B. MAJMUDAR & J.P. DEVADHAR, JJ. DATED : 20TH NOVEMBER, 2008 P.C. : 1. This appeal is directed against the judgment and order passed by the CESTAT in Appeal No.C/Appeal No.710/04-BB(S) dated 27-3-2006. After considering the evidence on record, both the Authorities have held that the revenue has failed to establish that the goods in question were smuggled goods as the same were available freely in market. The burden was on revenue to prove that it was smuggled goods but the revenue has failed to discharge the same. In para 6, the tribunal has observed thus : 6. It is pertinent to note that initially the case of the Revenue was that the seized goods were not the goods imported vide Bills of Entry submitted by the Respondent. However, on re-verification, the only discrepancies that were found were regarding the wrong description on incorrect country of origin. In the facts and circumstances of the case, therefore, the burden lay on the department to produce some material / evidence to establish that the seized goods were smuggled goods which they miserably failed to do. As to whether the party upon whom the burden lies to prove a fact, has discharged the burden or not is always a question of fact. 2. Since the revenue has failed to prove initial burden that the seized goods were smuggled goods and as pointed out above the same are available freely in the market, the finding of fact recorded by the CIT (Appeals) as well as by the Tribunal cannot be interfered with by this Court in this appeal, as this Court cannot reappreciate the finding of fact recorded by the Tribunal as well as by the Commissioner (Appeals). 3. There is no substantial question of law which arises for determination in this appeal. Hence, the appeal is dismissed. (P.B. Majmudar, J.) (J.P. Devadhar, J.)