2007 (4) TMI 522 - AT - Customs

Seizure - Initially by Police - Show cause notice - Smuggling - Burden of proof - Silver notified item

Issues Involved:
1. Validity of the seizure of silver slabs by Customs authorities.
2. Timeliness and validity of the show cause notice issued under Section 124 of the Customs Act.
3. Burden of proof regarding the smuggled nature of the seized silver.
4. Justification for the imposition of penalty on the appellant under Section 112(b) of the Customs Act.

Detailed Analysis:

1. Validity of the Seizure of Silver Slabs by Customs Authorities:
The appellant contended that the seizure by the Police on 3-5-1991 could not be treated as a seizure by Customs and that a second seizure by Customs was invalid. The Tribunal noted that the Customs Act, 1962, does not have a provision corresponding to Section 180 of the Sea Customs Act, which was the basis for the Supreme Court's decision in Gian Chand & Ors. v. State of Punjab. The Tribunal found that the Customs authorities independently seized the silver on 20-11-1996, under a panchnama, based on a reasonable belief that the goods were liable to confiscation. This independent seizure by Customs was distinct from the mere transfer of custody and carried all the legal consequences of a seizure under Section 110(1) of the Customs Act.

2. Timeliness and Validity of the Show Cause Notice Issued Under Section 124:
The appellant argued that the show cause notice issued on 12-5-1997 was beyond the statutory period of six months from the initial seizure by the Police on 3-5-1991. The Tribunal held that the relevant date for computing the limitation period was the date of seizure by the Customs authorities, i.e., 20-11-1996. The show cause notice issued on 12-5-1997 was within the six-month period prescribed by Section 110(2) read with Section 124 of the Customs Act. The Tribunal also noted that Section 124 does not prescribe any time limit for issuing a show cause notice and that the only consequence of delay beyond six months would be the return of the seized goods.

3. Burden of Proof Regarding the Smuggled Nature of the Seized Silver:
The appellant contended that the burden of proof was wrongly placed on him. The Tribunal noted that silver was a notified item under Section 123(2) of the Customs Act, which shifts the burden of proof to the person from whose possession the goods were seized. The Tribunal found that the Customs authorities had discharged their burden of proof by establishing that the silver was smuggled, based on the appellant's involvement in secreting the silver, the false story regarding ownership, and the forged rent note. The Tribunal also noted the appellant's admission of receiving Rs. 50,000 for keeping the silver and the corroborative statements of witnesses.

4. Justification for the Imposition of Penalty on the Appellant Under Section 112(b):
The appellant argued that the imposition of penalty was not justified as the Customs authorities had not established mens rea. The Tribunal found that the appellant was involved in acquiring, possessing, and concealing the smuggled silver, which was liable to confiscation. The Tribunal held that the totality of the facts and circumstances established, on the preponderance of probabilities, that the appellant had dealt with the silver slabs with the knowledge or reason to believe that they were liable to confiscation. The imposition of a penalty of Rs. 2 lakhs under Section 112(b) of the Customs Act was deemed justified and rather lenient.

Conclusion:
The appeal was dismissed, and the Tribunal upheld the penalty imposed on the appellant, finding no grounds for interference with the impugned order. The Tribunal concluded that the Customs authorities had validly seized the silver, issued a timely show cause notice, and correctly placed the burden of proof on the appellant, who was found to have dealt with the smuggled silver.

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