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TMI Blog1989 (9) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence - documentary or otherwise as to their licit importation could be produced. Five persons including the appellant Shri Samsuddin were on board on the truck and they were apprehended. The appellant Sheikh Samsuddin who claimed the ownership of the goods under recovery stated in a written statement tendered by him before the Customs Officers that he had procured the goods from one Rustam of Aurangabad who illicitly imported the same from Bangladesh. He also stated that the goods were loaded at the godown of Rustam at Chandrapara, Aurangabad and were scheduled to go to one Basirkhan, Begamgarh, Kanpur. Shri Taresh Mahaldar was also apprehended as an associate but he had no goods of his own in the truck. Thereafter, a statement of Taresh Mahaldar was taken on 16-1-1981 wherein he stated that he was an associate of the appellant Sheikh Samsuddin and was engaged in business of readymade garments illicitly imported from Bangladesh. The statements of Rambeer Singh, Aram Singh and Rampal Singh were also taken, who were the driver, khalasi and the representative of the owner in the aforesaid truck. In their statements all these three persons stated that they had no idea about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden is not discharged in the circumstances of this case. He further contended that the learned Collector was wrong in holding that the initial burden was discharged and that the accused has not rebutted the same. It was his contention that the department had not led any evidence to discharge that burden. The admission of the appellant cannot be relied upon as it was retracted. Even otherwise, from the admission of the appellant nothing turns out so as to hold that the initial burden is discharged. The admission by itself does not establish that the goods were smuggled into India. The goods can be said to be smuggled into India when they are imported without payment of duty or in violation of restrictions or prohibition regarding the entry into India, for this there is no evidence in this case. He also contended that from the Panchnama itself it is clear that only a part of the goods seized bear foreign markings. So, it is not clear as to what part of the goods bear foreign markings. He also contended that no joint inspection was allowed to the appellant and he was not allowed to cross-examine the witness whom he wanted to cross-examine. He also contended that even assuming the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the circumstances are sufficient to shift the burden on the appellant. He also contended that from the facts of the case and from the narration as taken in the show cause notice the ingredients of Section 112B is implied and therefore the imposition of penalty is in order. In this connection he relied on a decision reported in 1987 E.L.T. 385. 7. In view of the above contentions, the points that arise for our determination is- (i) whether the department has discharged its initial burden on the appellant to prove that the goods in question are not smuggled in character; and (ii) whether the imposition of penalty is in accordance with the law. As far as point No. (i) is concerned it is now seen from the orders of the Board that considering the fact that the area where the goods were found is bordering Bangladesh and such goods are found in that country there is reasonable belief for the conclusion that the goods have been smuggled from Bangladesh. The Board also held that the objection taken by the defence to the effect that the position of each and every garment is not ascertained and the reference to some of the garments only could in no way be applicable to all the garm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and he had purchased them unlawfully. Merely because he stated that he had purchased these goods unlawfully, it does not go to show that they are smuggled goods. Unlawfully has got several meanings and it does not necessarily to point to smuggled nature of the goods. He has stated that these goods were loaded at night from Rustam s Arat. He has further stated that there is another statement wherein he has stated that the goods are purchased by Rustam from Bangladesh. He takes these goods to one Basirkhan of Kanpur. So, the only statement that the appellant has made is that he has acquired these goods from Rustam and Rustam purchased them from Bangladesh. The circumstance is that the truck was intercepted in the morning at about 3.30 A.M. These circumstances, in our opinion, are not sufficient to hold that the burden had shifted on the appellant. In this connection, we may refer to a decision of the Tribunal in the case of Arvind Singh Kocher v. Collector of Customs, reported in 1986 (26) E.L.T. 792 (Tribunal) = 1986 (8) ECR 669. In that decision the Tribunal held that the initial burden lies with the department when the goods are neither notified under Chapter IV-A nor under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decision it is clear that the admission of the appellant that the seized goods are purchased by him from the passengers going abroad by itself is not sufficient to hold that they are smuggled goods and they are imported without payment of duty or in violation of restrictions for prohibition regarding entry of these goods into India. It was held in that decision that there was no evidence that the passengers who had sold the goods had not paid the duty. That burden was on the department and it has not discharged this burden. It was also held that even if the goods are of foreign origin that itself is not sufficient to order confiscation in the absence of clear evidence that they were smuggled goods. In the present case the appellant has averred in the statement that he had purchased the garments from Rustam and when the department searched the residence of Rustam, only some documents pertaining to his garment business were found and there was nothing to show that this Rustam Biswas had imported these goods without payment of duty. On the contrary, the learned Board found that Rustam Biswas is not liable to be proceeded and he was exonerated. Therefore, when the source of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts seized were old and used ones. Government further observe that such goods were from time to time disposed of through the auctions conducted by the Customs and Port Trust authorities and were often displayed for sale in the open market. Coupled with this, the petitioner has also produced documents to indicate that the goods were originally purchased from one Shri Deb Nath, Port Trust Auction purchaser. In the absence of any evidence to the contrary that such goods were illicitly imported or acquired, Government extend the benefit of doubt to the petitioner and set aside the confiscation of the goods and imposition of penalty on the petitioner. The observation of the Central Government is to the effect that such garments seized were old and used ones and such goods were disposed of from time to time through the auctions conducted by the Customs and Port Trust Authorities and were displayed for sale in open market. Therefore, in the absence of any evidence to the contrary that such goods were licitly imported or acquired the Government extended the benefit of doubt to the petitioner. The decisions of the Government of India on such matters though not binding on the Tribunal sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these goods must have been smuggled into India, thereby shifting the burden on the appellants to prove that they had not been so smuggled but had been lawfully acquired. Therefore, in the absence of any proof to indicate that the goods claimed by the appellants were not legally imported, the appellants are entitled to the release of the goods claimed by them." 12. It is thus seen that the case of the appellant in this case is much stronger than those cases. The reason is that these goods are freely available in the market and there is also no proof to show that these goods are smuggled into India without payment of duty. Not only that but the very source from which the appellant claims that he purchased the goods from one Rustam Biswas and that Rustam Biswas was proceeded by the department and he was given benefit of doubt by the Board, clearly establishes that the goods which were found in the possession of Rustam Biswas were not found to be smuggled goods and that is why the learned Board extended the benefit of doubt to Rustam Biswas. The statement of the appellant is that he purchased these goods from Rustam Biswas and if the benefit is extended to Rustam Biswas, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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