1999 (9) TMI 534 - AT - Customs

Summary

Issues Involved:
1. Legitimacy of the consignee and the charitable association.
2. Authority of the Directorate of Revenue Intelligence (DRI) to issue the show cause notice.
3. Confiscation of goods under Section 111(d) of the Customs Act.
4. Validity of the address discrepancy and the authenticity of the Memorandum of Association.
5. Burden of proof and circumstantial evidence in customs proceedings.

Issue-wise Detailed Analysis:

1. Legitimacy of the Consignee and the Charitable Association:
The Commissioner of Customs concluded that both Shri Gopal Krishna Sharma and the Association named as consignee in the Bill of Lading were bogus. The address of the Association, as per the Registrar of Society, was 12/3, Saket, Block Mandawali, Fazalpur, Delhi-92, whereas the consignee's address was H. No. 29, Sector 4, Gurgaon. The appellant failed to provide a satisfactory explanation for this discrepancy. The Commissioner also noted that Shri Sharma's name did not appear in the list of Governing Body Members or Founder Members of the authentic Memorandum of Association, dismissing the appellant's claim that the provided copy was a draft.

2. Authority of the Directorate of Revenue Intelligence (DRI) to Issue the Show Cause Notice:
The appellant argued that the Assistant Director, DRI, lacked the legal authority to issue the show cause notice, citing the case of Commissioner of Customs v. Poona Roller. However, the Tribunal observed that the Central Government, under Notification No. 19/90-Cus., dated 26-4-1990, conferred the powers of Assistant Collector of Customs on Assistant Director, DRI. The Tribunal distinguished the present case from Poona Roller, noting that the latter involved a demand under Section 28 of the Customs Act, whereas the current case dealt with unauthorized importation under Section 124, which does not require the "Proper Officer" designation.

3. Confiscation of Goods Under Section 111(d) of the Customs Act:
The Commissioner confiscated the goods absolutely under Section 111(d) of the Customs Act, concluding that Shri Sharma had no locus standi in the importation of the goods as he was not registered as an authorized representative of the real charitable institution. The Tribunal upheld this decision, agreeing that the goods were imported contrary to the provisions of the Customs Act and were rightly confiscated.

4. Validity of the Address Discrepancy and the Authenticity of the Memorandum of Association:
The Tribunal found no merit in the appellant's argument that the Society could have offices anywhere in India, as no evidence was provided to show an office at the Gurgaon address. The Tribunal also dismissed the claim that the Memorandum of Association provided by Shri Sharma was a draft copy, noting that the Society was registered in 1986, making it inconceivable that a draft would be presented a decade later. The absence of any representative from the Registered Office to claim the consignment further supported the Commissioner's findings.

5. Burden of Proof and Circumstantial Evidence in Customs Proceedings:
The Tribunal agreed with the Commissioner that the burden of proof on customs authorities is discharged if false information is provided by the appellants. The Tribunal cited the Supreme Court's ruling in Collector of Customs v. D. Bhoormul, which held that the Department need not prove its case with mathematical precision but must establish a degree of probability sufficient for a prudent person to believe in the facts in issue. The Tribunal found substantial circumstantial evidence supporting the Commissioner's conclusion that the goods were not imported by the bona fide Society registered at Delhi.

Conclusion:
The Tribunal rejected the appeal, upholding the Commissioner's decision to confiscate the goods under Section 111(d) of the Customs Act. The Tribunal found that the DRI had the authority to issue the show cause notice and that the discrepancies in the address and the Memorandum of Association, along with the lack of evidence of bona fide charitable intent, justified the confiscation.