M.P. Bohra, Member (J) - (1.)Heard Shri Ashok Haldar, Advocate for the Appellant and Shri N.K. Mishra, JDR for Respondent. Mr. Haldar submits that the impugned order is based on assumption and presumption. There is no iota of evidence that the copper scrap was of the third country origin. The copper scrap is not notified item under Section 123 of Customs Act and no presumption can be drawn for possession of such scrap. The burden was cast upon the Department to prove that the scrap was of the third country origin which the Department has failed to prove. Therefore, he submits that the appeal may be allowed. He relies on the following decisions: CC(P) W.B. Kolkata v. Sudhir Saha, Rajesh Sah v. CC (P) W.B, 2004 (170) ELT 344 Therefore, he submits that the appeal may be allowed.
(2.)Learned D.R. supports the impugned order. He submits that the initial burden cast upon the Department, has been discharged and the appellant failed to prove the licit possession of the copper scrap. Therefore, the appeal may be dismissed.
(3.)The copper scrap is not a notified item under Section 123 of Customs Act and no presumption can be drawn for possession of such scrap that the Scrap was of the third country origin. It was duty of the Department to prove that smuggled nature of the goods by production of tangible evidence. In the instant case there is nothing on record to show the smuggled character of the goods in question. There is no iota evidence that the goods were of smuggled nature. The finding of the Commissioner of Appeals is based on assumption. He has observed as under:
"On perusal of impugned order it is observed that the reasons for confiscation of the goods in question attributed to copper -scrap being smuggled prone items and failute on the part of the appellant to substantiate lawful acquirement of the goods or the source from whom it was purchased."

The Commissioner of Appeals proceed on the assumption that the burden was on appellant to prove that the goods were not of Third country origin. Whereas in the present case of non -notified goods, the burden was case upon the Department to prove that the goods were of smuggled nature or of Third country origin. The Department miserably failed to prove the smuggled character of the goods in question. The appeal deserves to be allowed.