9911796707
TMI Blog1986 (4) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... directed against the order of the Additional Collector of Customs, Madras, referred to supra, absolutely confiscating 96,000 Nos. of YKK brand zip fasteners of foreign origin, valued at Rs. 96,000/- c.i.f. under Section 111(d) of the Customs Act, 1962, hereinafter referred to as the Act , read with Section 3(2) of the Imports and Exports (Control) Act, 1947, besides imposition of a penalty of Rs. 50,000/- on Jethmal, proprietor of M/s. Jain Enterprises and Rs. 15,000/- on appellant Raichand under Section 112 of the Act. 3. On 27-1-1984 the Customs authorities on the basis of prior intelligence searched the residential premises of Jethmal, proprietor of M/s. Jain Enterprises, appellant herein, at No. 12, Thandavaraya Pillai Street, Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and so the burden is on the Department to prove and establish that the goods are of foreign origin and that they were smuggled into the country. The Department it was contended, has not discharged the initial burden cast on it under law and so the impugned order was assailed as not legally tenable. It was further urged that the inculpatory statement recorded from the appellant s brother Raichand (the other appellant herein), does not implicate Jain Enterprises and further the inculpatory statement of Raichand was resiled from on 30-1-1984 and in such a situation, it was contended that the goods cannot be confiscated nor penalty levied without any corroboration of the earlier retracted confessional statement of Raichand. The learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for appellant Raichand, generally adopted the submissions made on behalf of appellant M/s. Jain Enterprises regarding the genuineness of the purchase bills, absence of corroboration for the retracted statement of Raichand etc. The learned Counsel further submitted about the arrest of appellant Raichand on 27-1-1984 and his release on the evening of 28-1-1984 and contended that 29-1-1984 being a Sunday, retraction on 30-1-1984 by appellant Raichand of his earlier inculpatory statement dated 27-1-1984 cannot be said to be belated. 6. The learned Senior Departmental Representative repelling the submissions of the appellants contended that the statement of appellant Raichand dated 27-1-1984 is true and voluntary and reliable. The retraction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is not much evidence against Jain Enterprises warranting the same. 7. We have carefully considered the submissions made before us. It is not disputed that the goods under seizure at the relevant time were not items notified under Section 123 of the Act. However, it is a settled proposition of law that notwithstanding the inapplicability of Section 123 of the Act and the presumption arising thereunder, the Department can always seek support from the presumptions arising under Section 114 and 106 of the Evidence Act and the principles embodied therein as held by Supreme Court in 1983 E.L.T. 162 (S.C.) = AIR 1980 S.C. 593 in the case of State of Maharashtra v. Natwarlal Damodardas Soni . In the instant case at the time of seizure of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not immediately retracted, it is open to a quasi-judicial authority to go into the reasons for later retraction and find out as to whether the reasons are plausible or tenable. The plea that appellant Raichand was arrested on 27-1-1984 and released only on 28-1-1984 is too puerile to merit acceptance. If really the statement in question has been given by appellant Raichand in a state of fear, it does not stand to reason as to why he should mention about the purchase of the goods under seizure from a broker of Burma Bazaar and further about the plan for despatch of the same to Calcutta for sale. Likewise, if the statement in question is not true and voluntary, it does not stand to reason as to why a complaint was not made by Raichand at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bills relied upon by the appellant are not relatable to the goods under seizure. Apart from it, the mere production of bills by the appellant, would not ipso facto mean that the goods purchased under the bill are the identical goods under seizure, particularly in the context of an incriminating statement by no less a person than the very brother of the appellant himself. We therefore hold that appellant Jain Enterprises has not established a valid claim or title to the goods under seizure on the basis of valid purchase receipt. 10. The plea of the appellant that non-examination of the broker of Burma Bazaar by the Department during investigation would vitiate the impugned order is utterly devoid of substance. It is the case of appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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