9911796707
TMI Blog1990 (3) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... icers of D.R.I., Calcutta visited Cromolite Transport Corporation, Calcutta-7 and detained 14 (fourteen) consignments under Section 110 of the Customs Act, 1962. Enquiries were made both at Bombay and Calcutta. On the basis of results of enquiries the said goods of foreign & Indian origin collectively valued at Rs. 88,751/- were seized under Section 110 of Customs Act, 1962 on 2-3-1985. The particulars of the purported consignees, consigners and consignments of the said goods under seizure are as follows : Sl. No. Consignees Consigner C/N. No. No.of pcs./pkgs. Values (Rs.) 1. Industrial Bearing Corpn. Chilalia Bus-62, Bapu Khote Street, Bombay-3 38042 53pcs. 1 pkgs.- 21,125/- 2. As above Bona fide Entrp. 162, Bapu Khote St. Bombay-3 38119 417 pcs. 1 pkgs. 39,226/- 3. Overseas Engineers 138, Canning Street Calcutta-1 Omega Trading Company, 145, Narayan Dhrub St., Bombay -3 38067 67 pcs. 2 pkgs. 10,000/- 4. Overseas Engineers 138, Canning Street, Calcutta-1 Somuh Trading Co.,133/37, Narayan Dhrub St., Bombay-3 38056 16 pcs. 2 pkgs. 10,400/- 5. Hindusthan Bearing Corpn.,,40, Strand Road, 3rd Floor, Calcutta-1 Omega Trading Co., 145, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re seized under Section 110 ibid. Shri Shyam Sundar Daga, a partner of M/s. Overseas Engineers, in his deposition dt. 4-2-1985 before investigation officer of D.R.I. stated inter alia that he had brought 16 pcs. of bearing No. 22318 ZKL made in Czechoslovakia from M/s. Somuh Trading Co., 133/37 Narayan Dhrub Street, Bombay-3 vide bill No. STC/05/85 dt. 19-1-1985 and bearing viz. 6020 URS made in Rumania - 25 pcs. 1216 KTM made in China - 20 pcs. NG-409 TNB, made in Japan -15 pcs. from M/s. Omega Trading Co. vide bill No. 19/1985 dt. 19-1-1985 and that the said goods were transported to Calcutta by Cromolite Transport Corporation under cover of C/Note Nos. 38056 and 38067 respectively. He further stated that he did never purchase goods from the above parties in the past and that a broker whose name was Raman and his full name and address was not known to him arranged to send the goods to him from Bombay. Enquiries taken up at Bombay revealed that the said consigners of the goods were also fictitious and not in existence. Hence the goods valued Rs. 20,400/- were seized under Section 110 of Customs Act, 1962 by the D.R.I. Officers on the reasonable belief that the goods of foreign or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Calcutta as to why the goods under seizure should not be confiscated and why penalty should not be imposed on them under the provisions of laws as cited on the said show cause memo. Reply to show cause memo dated 25-7-1987 has been filed by (1) M/s. Overseas Engineers, (2) M/s. Hindusthan Bearing Corporation, (3) M/s. Cromolite Transport Corporation, (4) Shri Shyam Sundar Daga, partner of M/s. Overseas Engineers and (5) Shri G.D. Khandelwal, prop. of M/s. Hindusthan Bearing Corporation. Other parties to whom show cause notice was issued in this case did not respond. 7. Thereafter the appellants submitted their reply to the show cause notices and adjudication proceedings were taken up and after affording personal hearing to the appellants the learned Deputy Collector passed orders confiscating the goods consigned to the appellants. Their appeal to the learned Collector of Customs (Appeals) were also dismissed. Against this order the present appeal is filed. 8. The learned Consultant, Shri K. P. Dey appearing for the appellants contended that there is no proof to show that these goods are smuggled. He contended that there was no reasonable belief on the part of the officers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: "It is true that in such cases since the goods are not notified the burden to prove lies on the department. However, the very fact that the consigners are fictitious shows that the consignees who have claimed these goods knew that these parties were fictitious and if not, they should have come forward giving the correct addresses of the sellers of the goods. This was a fact, especially within their knowledge and by hiding it, they have failed to discharge the burden cast on them, which gets shifted in such circumstances from the deptt. to the concerned parties. It is well known that ball bearings are in fact smuggled from Bangladesh. Further the types of ball bearings which are seized are such that these cannot be imported by anyone unless he happens to be an actual user. None of these parties, in fact, have established that they are actual users of the goods. In fact, such a question does not arise as they have not imported these goods at all except in the case of consigner M/s. Universal Enterprises. In the circumstances, I am unable to accept the plea of the 6 parties M/s. Overseas Engineers, M/s. Hindusthan Bearing Corporation, M/s. Shyam Sales Service, M/s. Chanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances of the other evidence relied on by the Department could only give rise to suspicion. Suspicion, however strong, is not substitute for proof." This decision was followed by the Tribunal in the case reported in 1987 (29) E.L.T. 69 (Tri.) in the case of Collector of Customs & Central Excise, Chandigarh v. Shri Balkrishan. In that case also the Tribunal held that the initial burden lies on the Department when the goods are neither notified under Chapter IVA nor under Section 123 of the Customs Act, 1962 and even if it is assumed that the goods were of foreign origin, that by itself would not be sufficient to order confiscation in the absence of clear evidence that they were smuggled goods. 14. Applying the above principles to the facts of this case it is clear that the mere fact that the goods were foreign in origin is not sufficient to hold that they are smuggled goods. The circumstances that the consignee firm was fictitious and that the appellants could not name the broker, may at best create suspicion against the appellants. Suspicion however strong, cannot take the place of proof. The Department has not discharged the initial burden cast on the Department. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
