ORDER

1. We have heard the learned counsel for the petitioner. Challenge in this petition is to the order dated 20th September, 2004 passed by the Customs, Excise and Service Tax Appellate Tribunal in Customs Appeal No. 473/2004 [2004(177) E.L.T. 934 (Tri. - Del.)], vide which the appeal of the Customs Authorities was dismissed. While dismissing the appeal of the Department the Appellate Tribunal held as under :

"The initial burden has to be discharged by the Revenue to prove the smuggled nature of the impugned goods. Only when the Revenue discharges its burden of proving the smuggled nature of the impugned goods the burden will shift to the appellants to prove that they are not smuggled goods. The mere fact that the appellants could not produce bills for the purchase of the impugned ball bearings or they could not give the name and address of the seller/broker is not sufficient to come to the conclusion that the ball bearings in question had been smuggled from outside the country. It has been rightly contended by the learned Sr. Counsel that the ball bearings have not been notified under Section 123 of the Customs Act, and therefore, it is not their burden to prove their non-smuggled nature. The circumstances that the appellants could not name the broker may at best create suspicion. Suspicion, however, cannot take the place of proof. The Madras High Court in the case of Sha Rikhabdas Ghangara (supra) has held that where the goods are not of prohibited variety and the goods lawfully imported into the country are available in the open market, it is not justifiable on the part of the Customs authorities to demand proof of licit origin from a person in possession of the goods and on the failure to establish it, to draw the inference that the goods must have been illicitly imported."

2. The bare reading of the provisions of Section 123 of the Customs Act clearly shows that burden of proof is on the person having possession of the goods but only if the goods are specified goods under that Act import of which is not permissible or is permissible with sanction of the authorities and in accordance with law. In the present case, it is not disputed before us that goods in question, i.e., ball bearing is not a specified item under Section 123 of the Act. As such, the burden was on the Department to show that the goods were smuggled in the country. Having failed to discharge their onus, the mere suspicion could not take place of proof and it is so rightly been concluded by the Appellate Authority.

3. There is no merit in the appeal.

4. The appeal is dismissed.