1994 (4) TMI 182 - AT - Customs

Summary

Issues Involved:
1. Confiscation of Polyester Texturised Yarn
2. Imposition of Penalty
3. Knowledge or Reasonable Belief of Illicit Import
4. Burden of Proof
5. Difference of Opinion among Tribunal Members

Detailed Analysis:

1. Confiscation of Polyester Texturised Yarn:
The case revolves around the confiscation of 2646 kgs of Polyester Texturised yarn of Korean origin, valued at Rs. 3,43,980/-, which was seized from the factory premises of the appellant on 2-2-1987. The Customs Preventive Staff recovered 84 Card Board cartons wrapped in gunny cloth containing the yarn, which were seized due to the absence of evidence for their lawful import or acquisition.

2. Imposition of Penalty:
A penalty of Rs. 50,000/- was initially imposed on the appellant for contravention of the relevant provisions of the Customs Act, 1962. The appellant contested this penalty, leading to the appeal. The Adjudicating Authority upheld the confiscation and penalty, but the Tribunal later reduced the penalty to Rs. 25,000/- considering that the goods were not claimed by the appellant and he was not present at the time of delivery.

3. Knowledge or Reasonable Belief of Illicit Import:
The Tribunal found that the appellant knew the person named Monty, who dealt in smuggled goods, and there appeared to be a pre-existing arrangement to leave the yarn in the appellant's factory. The Tribunal noted, "It does not appear likely that a person would leave such a large quantity of yarn (notified goods) namely over 2646 kgs. valued at Rs. 3,43,980/- without any prior agreement or arrangement." The Tribunal upheld the finding that the appellant had knowledge or reasonable belief that the goods were liable to confiscation.

4. Burden of Proof:
The Vice President differed in opinion, stating that the burden of proving the charge lies on the Department, which had not discharged its burden beyond doubt. The Vice President emphasized that the appellant's statement that he was away from the factory in connection with his sister's marriage had not been contradicted. The Vice President opined, "In the circumstances, his submission that in his absence his labourer Ram Pravesh was approached and the owner of the goods left the cartons and told him that he would come and talk to the appellant the next day, remains in the realm of high probability."

5. Difference of Opinion among Tribunal Members:
Due to the difference of opinion between the Judicial Member and the Vice President, the matter was referred to a Third Member. The Third Member, after considering the evidence and submissions, concluded that the Department had not discharged its burden of proving that the goods were smuggled. The Third Member noted that the goods were marked as made in Korea, but the actual yarn did not bear any foreign marks, and the Department failed to apprehend Monty or provide further evidence. The Third Member stated, "The Department has also failed to establish that the seized goods were of foreign origin and that they were also smuggled one."

Final Order:
In view of the majority opinion, the appellant was granted the benefit of doubt, and the appeal in respect of the penalty was accepted. The final order was, "In view of the majority opinion the appellant is granted the benefit of doubt and his appeal in respect of only penalty is accepted."