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TMI Blog1987 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... why penal action be not taken was issued to the appellant. In reply to the Show Cause Notice, the appellant pleaded in defence that 47 and odd tolas of ornaments pertain to one Jassi Ram and 6 and odd tolas belongs to the mother of the appellant. The remaining ornaments and the two gold bars were disowned by the appellant. After the usual enquiry the Adjudicating Authority ordered for the confiscation of the seized gold ornaments and the gold bars and also imposed a personal penalty of Rs. 10,000/- on the appellant. Being dis-satisfied, the appellant went in appeal. On appeal, the Central Board of Excise and Customs ordered for the release of part of the seized gold ornaments weighing 63 tolas and also remitted the personal penalty in full but confirmed the confiscation of the remaining gold ornaments weighing 9 tolas and two gold bars weighing 20 tolas. Being dis-satisfied with the order of confiscation of 9 tolas and gold ornaments and two gold bars weighing 20 tolas, the appellant filed his Revision Petition before the Central Government which now statutorily stands transferred to this Tribunal to be dealt with as an appeal. 3. At the time of hearing learned SDR, Shri Shishir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gold ornaments. He also does not say that the same were recovered from his possession. From the impugned order as extracted above it is clear that the confiscation of the seized gold ornaments weighing 9 tolas and two gold bars weighing 20 tolas was upheld by the lower appellate authority on the very finding that they were never claimed by the appellant and there is indication that the same were smuggled into India and the ornaments were made out of the smuggled gold and nobody had come forward including the appellant to claim the ownership of the same because of their contraband nature. Since the ownership and recovery of the same were denied by the appellant and there was no evidence on the record that the appellant had been dealing with the gold ornaments and gold bars in question, the personal penalty imposed by the Adjudicating Authority was remitted in full and in our opinion this appears to be the reason as to why the appellant has not claimed the ownership or the recovery of the 9 tolas of gold ornaments and two gold bars of 20 tolas in question in the Revision Petition (now Memorandum of Appeal). From the grounds taken in the Revision Petition (now appeal) and the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the offence or that they had been unlawfully imported. Same view was reiterated in the case of Gian Chand v. State of Punjab, supra. In the case of Heera Lal Sarawgi v. Collector of Central Excise, Assam, supra, it was held that the department is bound to prove that the goods were imported in contravention of the prohibitory orders and the burden of proof lying on the department is not discharged by merely holding that accused has failed to prove the bonafide purchase of the seized goods. In M.G. Abrol v. Ami Chand Vallanji, supra, it was held that wherever the goods are seized, the seizure officer seizing the goods must at the time of seizure have a reasonable belief in his mind that the goods that he was seizing were smuggled goods. Any subsequent acquisition of such belief would be of no avail. In the case of Mangala Parshad v. V.J. Manerikar, supra, it was held that if the goods were not covered by erstwhile Sec. 178-A(2) the burden to prove unlawful importation is on the Customs authorities. Same view was taken in M/s Valimahomed s case, supra. In the unreported judgment of Supreme Court Nos. 1430 to 1442 of 1966, it was held that when the prosecution in the Criminal Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the criminal Court. In this view of the matter, we are supported by the judgment of the Bombay High Court, rendered in M.P.85 of 1978. In that case a direct question fell for consideration in connection with the ambit and powers of the Customs Department in initiating adjudication proceedings under Sections 111 112 of the Customs Act and consequential order of confiscation under Section 121 of the Customs Act and also penalty under Section 135 of the Customs Act. The facts of this case show that the petitioner was also tried in Criminal Court for offences punishable under Section 135 of the Customs Act, and ultimately, he was acquitted. The argument that was advanced before the Division Bench was as follows : At the very outset, Mr. Singhvi, appearing on behalf of the Petitioner, has contended that Captain Khan having been acquitted by the Additional Chief Presidency Magistrate and that acquittal having been confirmed by the learned Single Judge, it was not now open to the Central Government to proceed on the footing that diamonds were found in the coat brought by Captain Khan on 2nd November, 1969 and that it was not permissible for the Central Government to proceed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed under Section 112 must be treated as ineffective. Unless we are able to held that even in spite of the express provisions of Section 112 and Section 127, in case there is an acquittal in prosecution instituted under Section 135, their powers cannot be exercised, the contention on behalf of the Petitioner could not be accepted. We see no warrant for the view that there is a prohibition against the Customs Officer to perform their statutory functions and exercise their statutory power under the Act because of a failure of the prosecution started under Section 135 and the acquittal of the person concerned. By its very nature, the two proceedings are independent of each other, in a given case, evidence which may be available for the purposes of proceedings under Section 112 may not be available or even if it is available, it may be admissible in regular Court of law in which the admissibility and relevance of the evidence is determined with reference to the provisions of the Evidence Act. In a Criminal prosecution the accused need not open his mouth nor make any statement while in the proceedings for adjudication or confiscation before the Customs Department, the statement made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accordingly, confiscation can be enforced against the goods irrespective of whether the offender is known or unknown. Imposition of penalty is one in personam. Such a penalty can be levied only on the person who is involved in any offence enumerated in Section 112 of the Customs Act. In this view of the matter we are supported by the observations made by the Supreme Court in the case of Swepujanrai Indrasanarai Ltd. v. Collector of Customs AIR 1958 SC 845. In paragraph 15 their Lordships observed as follows :- 15. ........ The point to note is that so far as the confiscation of the goods is concerned, it is a proceeding in rem and the penalty is enforced against the goods whether the offender is known or not known; The Order of confiscation under Section 182, Sea Customs Act, operates directly upon the status of the property, and under Section 184 transfers an absolute title to Government. It is interesting to note that the Learned Counsel for the appellant has cited the case of Misrimal Hansraj v. Union of India, 1975 Criminal Law Journal 1617 decided .by the Madras High Court to show that the appellant is entitled to the return of the contraband gold in view of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmental case does not in any way establish the connection of these ornaments weighing in the aggregate approximately 63 tolas with the smuggled gold and as the provisions of section 178(A) of the Sea Customs Act are not applicable in the facts and circumstances of the case, the board holds that these are not liable to confiscation and should be released. However, the Collector s order confiscating the remaining gold and ornaments are upheld as these are neither claimed by Sat Narain nor is there indication that the gold had not been smuggled and the ornaments had not been made out of smuggled gold. On the contrary, from the facts and circumstances of the case it is clear that because of their contraband nature no-body had come forward to claim these ornaments and gold. Thus, it is clear that the seizure and the smuggled nature of 9 tolas of gold ornaments and 2 gold bars weighing 20 tolas was never challenged by the appellant before the authorities below. Under these circumstances, the appellant has no locus standi to challenge the validity of the seizure and smuggled nature of the confiscated gold in question. In this view of the matter we are supported by a Division Bench deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the gold bars, the sankal weighing about 12 tolas and 3 rings were not recovered from his possession by the Police. The Railway Magistrate disbelieved the version of the prosecution about the recovery of the gold from the possession of the appellant and accepted the contention of the appellant about the complicity of one Magraj in making up a false case against him and ultimately acquitted the appellant. Against this Order of acquittal, the State went in appeal before the Hon ble Rajasthan High Court, which was dismissed on 4-4-62. In the State appeal before the Hon ble Rajasthan High Court, it was contended by the appellant that the two gold bars with foreign markings, one sankal and the 3 rings mentioned by the accused in his statement, were not recovered from his possession and that no criminal liability could therefore be fastened on him for the possession of the other ornaments which belonged to him and in respect of which there was no evidence to show that they were smuggled gold . While disposing of this argument, their Lordships observed as follows : It now remains to be considered whether there is sufficient evidence on the record to prove that the accused co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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