1990 (8) TMI 277 - AT - Customs

Summary

Issues Involved:
1. Whether the Department has discharged its burden in showing that the goods were of a smuggled nature.
2. Whether the appellant has contravened any provision of the law cited in the show cause notice.
3. Whether the goods were liable for absolute confiscation.
4. Whether the penalty imposed is justified.

Issue-wise Detailed Analysis:

1. Whether the Department has discharged its burden in showing that the goods were of a smuggled nature:
The appellant admitted that the goods were of foreign origin but contended that this admission alone was insufficient for the Department to seize and confiscate the goods. The Department argued that the appellant's inability to produce purchase documents or the names of brokers shifted the burden of proof to the appellant. The Tribunal referred to the Supreme Court ruling in Collector of Customs, Madras v. D. Bhoorull, which stated that the Department is deemed to have discharged its burden if it adduces sufficient evidence to raise a presumption of smuggling. The Tribunal concluded that the Department had discharged its burden in this case due to the appellant's admission and failure to provide necessary documentation.

2. Whether the appellant has contravened any provision of the law cited in the show cause notice:
The appellant argued that the show cause notice was defective as it did not specify the particulars of the seized items. However, the Tribunal found no infirmity in the show cause notice, noting that it included an annexure detailing the seized goods. The Tribunal held that the appellant's failure to produce purchase documents and the clear admission of the goods being of foreign origin constituted a contravention of the cited provisions.

3. Whether the goods were liable for absolute confiscation:
The Assistant Collector had confiscated all the goods under Sections 111(d) and 111(p) of the Customs Act, 1962, but the Collector (Appeals) ordered the release of goods listed under Serial Nos. 5, 9, and 19, as they did not indicate foreign origin. The Tribunal agreed with the Collector (Appeals) regarding these items but found that the Collector (Appeals) should re-examine items listed from 12 to 21, as there was a contention that these items did not bear foreign markings. The Tribunal remanded the matter to the Collector (Appeals) for a de novo examination of these items.

4. Whether the penalty imposed is justified:
The Assistant Collector imposed a personal penalty of Rs. 500.00 on the appellant under Section 112(b) of the Customs Act, 1962. The appellant challenged the penalty, arguing that the burden of proof was not discharged by the Department. However, the Tribunal upheld the penalty, citing the Supreme Court ruling that the Department had discharged its burden by raising a presumption of smuggling based on the appellant's admission and lack of documentation.

Conclusion:
The Tribunal upheld the confiscation of most of the goods and the penalty imposed on the appellant, but remanded the matter to the Collector (Appeals) for re-examination of items listed from 12 to 21 to determine whether they were genuinely of foreign origin or duplicates.