9911796707
TMI Blog1990 (7) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Bombay by Air India Flight AI 316 and he had no checked baggage and was carrying a briefcase only. The appellant stated that the briefcase contained cloths and tinned sweets. Shri Mohammed had to break open the briefcase for allowing the Customs officers to examine the contents of the briefcase, as he had no keys. The examination resulted in recovery of huge quantity of electronic parts, integrated circuits and 3 pcs. of bearings of foreign origin collectively valued at Rs. 1,89,503.37 (CIF). A search list was prepared on the same day, i.e. 31-3-1987. The impugned goods along with the briefcase were seized by the Customs authorities on reasonable belief that those were smuggled, as the appellant failed to produce any valid document in support of legal acquisition/possession of the impugned goods. Thereafter a show cause notice dated 18-9-1987 was issued to the appellant and two other persons asking them to show cause as to why the impugned goods under Sl. Nos. 1 to 46 of the Search List, and the briefcase listed at Sl. No. 49 of the Search List, should not be confis.c.ated under Section 111(d) and Section 119 of the Customs Act, 1962 respectively, and why penalty should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , integrated circuits and bearings were found in the brief case of the appellant. He also contended that the appellant wrongly declared that they contained sweets but on opening the box it was found that the same contained integrated circuits. It was, therefore, his contention that such a large number of integrated circuits found in the briefcase and the misdeclaration by the appellant goes to show that the appellant was aware of the contents of the box and he wilfully misdeclared the same. He also contended that the appellant had given a statement to the effect that the box was given to him by one Aziz Bhai of Bombay for delivering the same to another person in Calcutta and he agreed to do so against a pecuniary consideration. Shri Biswas contended that on enquiry by the department the consignee and the consignor were found to be fictitious persons. It was, therefore, contended that this clearly establishes that the appellant has falsified. This would prove that the appellant was aware of the contents of the box. He therefore, contended that the goods being seized by the officers of the Customs on a reasonable belief that they were smuggled into India, the burden had shifted on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me in the order will not vitiate the order. He, therefore, justified the order passed by the learned Collector in this behalf. 6. We have heard both the sides in detail. The point that arises for our determination is whether the imposition of penalty under Section 112 on the appellant is legal and valid. 7. In order to impose a penalty it is necessary to prove that the appellant had acquired possession or was carrying the above goods which he knew or has reason to believe, are liable to confis.c.ation under Section 111 of the Customs Act, 1962. The department wants to show that these goods which were found in the box that the appellant was carrying was smuggled goods. It was the contention of the learned SDR that these goods were found in the possession of the appellant and they were having foreign markings and on a reasonable belief they were seized from the possession of the appellant. He, therefore, contended that the burden of proof has shifted on to the appellants and it was for him to prove that these goods were not smuggled in nature. In this connection, he placed reliance on a decision of the Tribunal in the case of Join Enterprises v. Collector of Customs, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on them, since the seizure of the goods should be preceded by formation of a reasonable belief in the mind of the seizing authority. As rightly contended by the learned consultant for the appellant, Section 123 of the Act also is not applicable to the facts and circumstances of this case because it is only after the initial onus of proving that the goods are of foreign origin is dis.c.harged by the Department the presumption under Section 123 can be invoked against the appellant. In the instant case the appellant right from the beginning contended that the goods are of Indian origin, and admittedly the goods did not bear any foreign marking nor any name of a foreign country as manufacturers. This aspect of the matter has been lost sight of by the Collector (Appeals) and his finding under the impugned order, from the Inventory of the goods seized that the cosmetics and textiles items seized in this case bear foreign markings and are notified under Section 11B of the Customs Act, 1962" is factually incorrect. The goods under seizure, according to the inventory did not bear any foreign markings. Only one item, i.e. the first item in the inventory viz., 2 Nos." Tiger Head Bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was no burden on the appellant to establish that the T-shirts and half shirts were licitly imported in India. The initial burden that T-shirts and half shirts were smuggled goods lies on the department. The department had not led any evidence to dis.c.harge that burden. The department however relied upon the admission of the appellant and two other circumstances, namely, recovery of goods of foreign origin from a purchaser from the appellant and the conduct of the appellant in not opening the door and wetting the T-shirts and half shirts which he got done before the police were called. The admission of the appellant was that the seized goods were purchased by him from the passengers coming from abroad. This 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 of those goods into India. There was no evidence that the passengers who had sold the goods to the appellant had not paid the duty. The burden was on the department and the department may not dis.c.harge of this burden. Even if we as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t smuggled lay on the petitioners and in entertaining a belief that they were smuggled goods merely because the petitioners had failed to dis.c.harge such a burden. Learned Counsel for the respondents also could not place any material before us to show that legally it was not possible for any one to obtain licence for importing video cassettes for purposes other than for use by actual users. Reference to Import Policy formulated and published by Government of India for the year 1983-84, made by the respondents does not appear to be conclusive in this regard. In the result, we find that there neither is any positive material before the respondents nor is the presumption under Section 123 available to them for entertaining the belief that the video cassettes found in possession of the petitioners are smuggled goods, liable to confis.c.ation under the Customs Act. Even if it be that the video cassettes imported under a licence granted by the appropriate authority have, after being properly imported, dealt with in a manner which contravenes the provisions of the licence or any other provisions of law, it would not mean that the cassettes have been imported contrary to the prohibition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no such evidence in the present case to show that the integrated circuits were imported in a clandestine manner. The burden of proving that the goods were not smuggled in nature also had not shifted to the appellant. 13. In this connection, it is worthwhile to reproduce from paragraphs 7 and 8 and 9 from the decision of the Tribunal in the case of S.N. Sarkar Abdul Latif v. Collector of Central Excise, reported in 1985 (22) E.L.T. 186 (Tribunal): 7. The Collector has observed that the fact, that the seized goods are imported and that such import is restricted or prohibited and that the seizure was effected on the basis of specific information would give rise to a presumption of the smuggled character of these goods. But such conclusion on the part of the Collector appears to us to be unjustified. In so far as the goods are admitted to be neither notified under Section 123 of the Customs Act nor covered by Chapter IV-A of the Act, the above circumstances alone would not justify a presumption as to their smuggled character. Therefore, the Collector was not justified in placing the burden on the appellants to prove the lawful origin of these goods in India. 8. * * * * ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
