“It is the onus on the Customs Department to lead evidence in support of allegation as to the smuggled nature of goods”
The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ordered release of Chinese mobiles on the ground that there was no evidence on allegation of smuggling.
The appellant, Dharmesh B. Bhavsar is a trader engaged in trading of electronic goods including mobile phones and purchases the goods from local market in India for trading.
The Counsel for the appellant N. K. Tiwari assailing the impugned order inter alia urges that the appellant had led sufficient evidence showing the purchase of mobile handsets from open market in Delhi. Admittedly, it is a case of town seizure as the goods were admittedly being carried by the transporter from Delhi to Ahmedabad.
Further, the Counsel urged that the Customs Department had not brought any evidence on record in support of their allegation of smuggled nature of goods. The whole order of confiscation and penalty is bad as the same is based on presumption and assumption, without any corroborative evidence.
It was also contended that the goods have been admitted to have been traded within India and the Sales Tax Department had assessed and collected the sales tax along with penalty on the goods/ mobile phones in question.
The contention of the appellant is also supported by the documentary and oral evidence led by the transporter –and the goods were inspected by the Sales Tax Department. After being assessed to Sales Tax and on payment of sales tax, the goods were released by the Sales Tax Department and thereafter immediately detained and seized by the Customs Department.
Thus, the fact of trading of the goods in India in the domestic market, is also supported by the levy of sales tax by the Sales Tax Department of Rajasthan.
The Tribunal of observed that “I find from the record that no evidence has been brought on record in support of its allegation. Further, sale-purchase of goods in India is supported by the levy of Sales Tax by the Sales Tax Department of Rajasthan.”
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