The Kolkata bench of the Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) ruled that mosquito repellents and ladies’ garments, being smuggled goods, cannot be confiscated under Section 123 of the Customs Act.
The assessee Debesh Dey was the incharge of the godown, who stated that the owner of the said goods is one Jahar Das ( one of the other appellants herein ), who had brought the said goods in the said two vehicles from one Janab of Manipur; he received the goods in the said godown without supporting documents; he knew that the said goods were of foreign origin and illegally imported from Myanmar. The said goods were already unloaded from the said vehicles and he was not the owner of the said goods; the said godown was taken on rent by Shri Jahar Das from the owner of a Chevrolet vehicle dealer of Nagaon.
In these circumstances, as the revenue has failed to establish the ‘smuggled’ nature of the goods in question, the impugned mosquito repellents and ladies garments cannot be confiscated.
Regarding the HCFC gas confiscated from the godown of the appellant, the Revenue alleges that it is a restricted item manufactured only in China. However, while the goods are indeed ‘restricted,’ they are not ‘prohibited.’ Consequently, the onus is on the Revenue to prove that the goods were smuggled, which they have failed to do. Merely stating that the goods can only be manufactured in China is insufficient grounds for absolute confiscation.
The two member bench of the tribunal comprising Ashok Jindal ( Judicial member ) and Rajeev Tandon ( Technical member ) found that the fact that the mosquito repellents and ladies garments in question are of foreign origin or smuggled one has to be proved by the Revenue. However, the Revenue has failed to prove that the same are smuggled in nature. From the investigation conducted, it is not forthcoming as to how the revenue has alleged that the impugned mosquito repellents and ladies garments are smuggled ones.
Further, the above said items are not notified items under Section 123 of the Customs Act, 1962.
Accordingly, the order of confiscation of the goods in question was set aside. Further hold that the goods in question are not liable for confiscation, therefore, no penalty can be imposed on the appellants, CESTAT set aside the impugned order qua the appellants herein and allow the appeals with consequential relief,
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