1997 (3) TMI 124 - HC - Customs

Summary

Issues Involved:
1. Territorial Jurisdiction
2. Alternative Remedy
3. Burden of Proof
4. Legality of Confiscation and Penalty

Issue-wise Detailed Analysis:

1. Territorial Jurisdiction:
The petitioners argued that the High Court of Madras had jurisdiction to entertain the writ petition because part of the cause of action arose in Madras, where the TV was purchased and dispatched. The respondents contended that the cause of action arose in Ahmedabad, where the seizure occurred. The court referred to Article 226(2) of the Constitution, which allows a High Court to exercise jurisdiction if the cause of action arises wholly or in part within its territorial limits. The court cited several precedents, including *Veeri Chettiar v. Sales Tax Officer, Bombay* and *Oil and Natural Gas Commission v. Utpal Kumar Basu*, to establish that the High Court had jurisdiction because the TV was purchased and dispatched from Madras. The court concluded that the writ petition was maintainable in the High Court of Madras.

2. Alternative Remedy:
The respondents argued that the writ petition should be dismissed because the petitioners had an alternative remedy of appeal before the Commissioner (Appeals). The petitioners contended that the order was ab initio void due to the lack of a show cause notice and enquiry for the first petitioner, and they were unable to pay the penalty to file an appeal. The court referred to several decisions, including *Shew Bhagwan Goenka v. The Collector of Customs* and *M.G. Abrol v. M/s. Shantilal Chhotelal and Co.*, which held that the existence of an alternative remedy does not oust the High Court's jurisdiction. The court concluded that the writ petition was maintainable despite the availability of an alternative remedy, especially given the alleged violation of natural justice and the inability to pay the penalty.

3. Burden of Proof:
The petitioners argued that the burden of proof to show that the TV was smuggled lay on the Customs Department, as the TV was not specified under Section 123 of the Customs Act. They cited *Kanungo and Co. v. Collector of Customs* and *Manicklal Sen v. Additional Collector of Customs*, which held that the burden of proving unlawful importation lies with the Customs authorities. The respondents contended that the TV was a brand new piece, not covered by the baggage receipt, and hence, smuggled. They relied on *Collector of Customs v. D. Bhoormul*, which stated that the burden of proof could shift based on the circumstances. The court held that the Customs Department failed to provide direct evidence to prove that the TV was smuggled and that the burden of proof was wrongly placed on the petitioners.

4. Legality of Confiscation and Penalty:
The petitioners argued that the TV was purchased for household use, and they provided a baggage receipt and an affidavit from the air passenger. They contended that the confiscation was illegal as the TV was not seized during importation and was not covered by Sections 11B or 123 of the Customs Act. The respondents justified the confiscation, citing illegal importation without customs duty. The court found that the Customs Department failed to prove that the TV was smuggled and that the second respondent was not justified in discarding the evidence provided by the petitioners. The court concluded that the confiscation and penalty were illegal and beyond the jurisdiction of the Customs Authority.

Conclusion:
The court allowed the writ petition, holding that the High Court of Madras had territorial jurisdiction, the writ petition was maintainable despite the availability of an alternative remedy, the burden of proof was wrongly placed on the petitioners, and the confiscation and penalty were illegal. The court ordered the restoration of the TV set or payment of Rs. 68,200/- to the petitioners.