*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.32 OF 2005 The Commissioner of Customs (Preventive). ..Appellant. -Versus- Dinesh Raysoni. ..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 This appeal by the Department of Customs, Mumbai is directed against the order dated 17.12.2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Branch, Mumbai whereby the order-in-original passed by the Commissioner of Customs (Preventive), Mumbai against the Respondent was set aside. 2 The facts giving rise to this appeal, in brief, are that the officers of M & P Wing, Mumbai sezied the goods of foreign origin valued at Rs.2,84,145/-. As no documents of evidencing the payment of duty on the said goods were produced by the Respondent, a show-cause notice dated 02.11.1999 was issued and *2* it was adjudicated upon by the Joint Commissioner of Customs (Preventive), M & P Wing, Mumbai. The Joint Commissioner of Customs held that the goods under seizure could not be considered bonafide baggage. He held that the Respondent failed to produce the documentary evidence about the legal acquisition of the goods. The Adjudicating Authority by order dated 22.12.2000 inter- alia confiscated the goods under seizure having total market value of Rs.2,84,145/- in exercise of powers u/s 111(d) of the Customs Act, 1962 and imposed a personal penalty of Rs.14,000/- on the Respondent under Section 112(b)(ii) of the Customs Act, 1962. Out of the said goods, the goods valued at Rs.1,69,625/- were disposed of and in respect of the remaining goods valued at Rs.1,14,520/- an option was given to the Respondent to redeem the goods on payment of fine of Rs.36,000/- and payment of customs duty @ 61.2% on the assessable value of Rs.71,000/-. 3 The Respondent preferred an appeal against the order- in-original dated 22.12.2000 passed by the Adjudicating Authority to the Commissioner of Customs (Appeals), Mumbai being Appeal No.48/2002 BP. The appeal was decided on 17.12.2002. It was held that the seized goods were not notified goods and were freely available in the market and the burden of proving the illicit nature of import was on the Department, which the Appellant/ *3* Department failed to discharge. Hence, the order-in-original dated 22.12.2000 was set aside by the order dated 17.02.2002. 4 The Department preferred an appeal against the order- in-appeal dated 17.02.2002 before the Customs, Excise & Service Tax Appellate Tribunal (WZB), Mumbai. The Tribunal by order dated 31.01.2003 allowed the appeal and remanded the matter back to the Commissioner of Customs (Appeals). The Appellant/Revenue did not challenge the order of remand dated 31.01.2003. 5 Pursuant to the aforesaid order of the Tribunal, the Commissioner of Customs (Appeals) passed an order in Appeal No. 09/2004 dated 24.02.2004 and upheld the order of confiscation in respect of wrist watches and allowed the release of the same on payment of fine and also reduced the penalty imposed on the Respondent. In respect of the remaining goods which were found to be non-notified, the Commissioner of Customs (Appeals) set aside the order of confiscation. 6 The Department preferred an appeal to the Customs, Excise & Service Tax Appellate Tribunal (WZB), Mumbai being Appeal No.232, 233/2004-Mum. The Tribunal vide order dated 17.12.2004 dismissed the appeal. The Department feeling aggrieved preferred this appeal. *4* 7 This appeal was admitted vide order dated 19.10.2005 to consider the following substantial question of law:- 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? 8 The Tribunal in its order dated17.12.2004 upheld the order of the Commissioner of Customs (Appeals) and dismissed the appeal. In the concluding paragraph of it’s order, the Tribunal has observed thus:- “The grounds taken by the Revenue reveal that the Respondents had disclosed ground of acquisition of the goods and in view of the liberalized imports through baggage and other means and removal of ban on sale of such imported goods, the availability on open sale has increased and in our opinion the Respondents statements as regards procurement of the goods is sufficient and true in view of the reality that sale invoices were not a necessity in commercial world; therefore, absence of the same cannot ipso facto lead to a conclusion that the goods are smuggled. No merits are found in the present appeal filed.” 9 The judgment and order passed by the Tribunal and the Commissioner of Customs (Appeals) are in conformity with the law laid down by the Apex Court in case of Collector of Customs, Madras and others vs. D. Bhoormull, 1983 ELT 1546 (SC) and they have rightly held that the Department failed to discharge the *5* burden that the non-notified goods were smuggled goods since the burden of proof was on the Department. As a result, the order-in- original passed by the Joint Commissioner of Customs (Preventive) about confiscation and penalty in respect of those goods has been rightly set aside by the Commissioner of Customs (Appeals) and the Tribunal by its order dated 17.12.2004 with which no fault can be found. 10 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.)