Per V.K. Agrawal : The issue involved in this appeal filed by M/s. Lakhpatrai & Sons, is whether Ball Bearings seized from their premises are liable for confiscation and penalty is to be imposed on them.

2. Shri G.L. Rawal, learned Advocate, submitted that the Appellants deal in the business of selling and purchasing of ball bearings; that the Customs officers seized old and used ball bearings of different sizes from their premises on 7.9.99; that the Joint Commissioner under Order-in-Original No. 20/2000 had confiscated the seized ball bearing with an option to redeem the same on payment of a fine of Rs. 1,20,000/- and on payment of appropriate Customs duty besides imposing a penalty of Rs. 1 lakh on the ground that the Appellants could not produce any evidence for lawful import/acquisition/storage of ball bearings in question; that the Commissioner (Appeals) also under the impugned Order rejected their appeal on the ground that no bill or other document was produced to show the legal procurement/possession of the goods. The learned Advocate, further, submitted that the Commissioner (Appeals) has given a specific finding in the impugned Order that the Appellants in his statements dated 7.9.99 and 24.2.2000 had duly accepted smuggled nature of the confiscated goods procured through broker on part payment without any bill/receipt; that this finding in the impugned order is factually not correct inasmuch as in none of the statements it has been accepted that the ball bearings in question were smuggled one; that Shri Vinod Kumar in his statement dated 24.2.2000 has only stated that "had we knew that the goods under seizure were not properly imported we would not have purchased the same." The learned Advocate contended that it cannot be inferred from this statement that the smuggled nature of the goods had been accepted by the Appellants. He finally submitted that ball bearings have not been notified under Section 123 of the Customs Act and as such the burden of proof that these are smuggled goods are on the Department. He relied upon the decision in the case of Premsagar Agarwal vs. CC, New Delhi 2003 (56) RLT 388 (CEGAT-Del.)=2003 (160) ELT 505 (T) wherein it has been held that as ball bearing have not been notified under Section 123 of the Customs Act their confiscation is not sustainable in absence of any evidence by Revenue to prove that ball bearings are smuggled one. Reliance has also been placed on the decision in the case of Mohd. Zabiullah vs. CC, New Delhi - 2003 (160) ELT 295 (Tri.-Del.) wherein it has been held that if the goods have not been notified under Section 123 of the Customs Act the burden to prove their smuggled nature is on the Department. Reliance has also been placed on the decision in the case of Shri Irfan Mohd. & Ors. vs. CC, New Delhi, Final Order Nos. A/1028-29/98-NB(DB) dated 20.11.98 and Sha Rikhabdas Ghaganra vs. CCE, Madras - AIR 1963 MADRAS 337.

3. Countering the arguments Shri S.M. Tata, learned SDR, submitted that in all 4711 pieces of ball bearings of foreign origin were recovered from the godown of the Appellants; that as the Proprietor of the Appellant firm gave satisfactory evidence of 111 pieces of ball bearings the same were released; that the Proprietor could not produce any evidence for the remaining 4600 pieces of ball bearings; that further, he did not know the names and whereabouts of broker or the seller of the impugned goods; that though he had only made part payment to the so called seller/broker, he did not know their whereabouts; that this clearly shows that conduct of the Appellants is very suspicious; that no proof about the legal possession of the impugned goods has been brought on record including the names of persons from whom the goods were purchased; that the goods are smuggled one and liable for confiscation. He relied upon the decision in the case of Ratan Lal Daga vs. CC, (Prev.), Calcutta - 1995 (7) RLT 633 (CEGAT-ERB)=1996 (85) ELT 257 (Tri.) wherein it has been