1990 (2) TMI 202 - AT - Customs

Summary

Issues Involved:
1. Legality of the seizure and confiscation of goods under Section 111(d) of the Customs Act, 1962.
2. Burden of proof on the department to establish that the goods were smuggled.
3. Applicability of the precedent set in Jain Enterprises v. Collector of Customs.
4. Validity of evidence and inspection reports used to support the confiscation.
5. Whether mere possession of foreign-marked goods is sufficient to presume smuggling.

Detailed Analysis:

1. Legality of the Seizure and Confiscation of Goods:
The Customs Officers intercepted a vehicle based on secret information and seized 69 packages containing copper wire and broken machinery parts of railway origin. The seized goods were believed to be smuggled from Bangladesh, violating the Import Control Order, 1955, and relevant notifications under Section 11 of the Customs Act, 1962. The goods were seized under Section 110(1) and deemed liable for confiscation under Section 111(d), with potential penalties under Section 112.

2. Burden of Proof on the Department:
The appellant contended that there was no proof that the goods were smuggled. The department argued that the bulk nature of the goods shifted the onus onto the appellant to prove otherwise, referencing the decision in Jain Enterprises v. Collector of Customs. However, the tribunal noted that the decision in Jain Enterprises involved an inculpatory statement and bulk zip fasteners, which were not present in this case. The tribunal emphasized that the burden of proof remained with the department, as the goods were not notified under Section 123 or Chapter IVA of the Customs Act.

3. Applicability of Precedent:
The tribunal found that the decision in Jain Enterprises did not apply to the present case due to the absence of an inculpatory statement and the nature of the seized goods. Instead, it relied on the decision in Collector of Customs v. Balkrishnan, which held that the department must provide evidence that goods were imported clandestinely.

4. Validity of Evidence and Inspection Reports:
The joint inspection report revealed that only three small pieces bore foreign markings (Pakistan, Germany, and London), while the remaining 41 pieces did not. The tribunal concluded that mere resemblance to railway engine parts was insufficient to establish that the goods were smuggled. Additionally, the tribunal criticized the reliance on an investigation report about the business premises, which was not furnished to the appellant, thereby denying them an opportunity to contest it.

5. Mere Possession of Foreign-Marked Goods:
The tribunal referenced the decision in Shri Arvinder Singh Kocher v. Collector of Customs, Bombay, which held that mere possession of foreign goods does not suffice for confiscation without clear evidence of smuggling. The tribunal noted that the visual examination alone was inadequate to conclude that the goods were railway engine parts, as per the Bombay High Court's ruling in Karendra Kumar v. Supdt. of Central Excise.

Conclusion:
The tribunal found no definitive evidence that the seized goods were smuggled from Bangladesh. It ruled that the confiscation of the goods, except for the Pakistani coins, was unjustified. The appeal was partly allowed, setting aside the confiscation of the goods except for the Pakistani coins, which remained confiscated. The rest of the goods were ordered to be released to the appellant.