9911796707
TMI Blog1990 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, 138, Canning Street, Calcutta - 700 001 by M/s. Haridas Sons of 101, Nagdevi Cross Lane, Bombay - 400 033 and thereafter the said pkg. was transported to the said godown of M/s. Inland Road Service at P-221-2, Strand Road, Cal. - 1 from the Rail-yard by the lorry under their es.c.ort. On 16-10-1987 the Customs officers issued the detention order in respect of the said pkgs. to the said carrier firm and subsequently on 19-10-1987 the subject pkg. under consignment Note No. 238058/1 dtd. 9-10-1987 was opened and examined at the said godown in presence of two independent witnesses and Shri Agam Prajapat the person in charge of M/s. Inland Road Service. As a result of examination 60 pcs. foreign-made roller bearings were recovered from therein. The said bearings were not accompanied with any licit document in support of their legal possession, acquisition and/or importation. Shri Agam Prajapat also could not produce any such document for the said goods and as such the said roller bearings, so recovered were seized on the reasonable belief that those were smuggled into India and were liable to confis.c.ation under the provisions of the Customs Act, 1962. The copy of the Consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt policy period these goods could be imported. But this should be given to actual users. It was his contention that the respondents are not the actual users and therefore, the preponderance of probability is that the goods are smuggled goods. In this connection, he also relied on a decision of the Supreme Court reported in 1988 (4) S.C.C-I in the case of Indra Ramchand Bharwani v. Union of India. It was held in that decision that when the officers had seized the goods in question on a reasonable belief, that is not the fact on which the Court should sit in appeal. It was also held by their Lordships that the officers in view of their past experience have seized the goods on a reasonable belief and when there are prima facie materials for that belief the Court should not sit on appeal, about the same. Therefore, he contended that on a specific information when the goods are seized by the officers on a reasonable belief, there is no infirmity in the seizure. He also relied on a decision of the Tribunal reported in 1986 (25) E.L.T. 811 in the case of Jain Enterprises v. Collector of Customs. Relying on the above-said decision it was contended before me that even though the goods in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is to prove a fact and it never shifts. But such shifting of onus is a continuous process. Relying on the above decision it was contended before me that the burden was always on the Department to prove the smuggled nature of the goods and it never shifts. He, further, relied on a decision of the Supreme Court reported in AIR 1970 S.C. 1858 in the case of Hind Trading Co. v. Union of India and Another, wherein at para 10 their Lordships held that after the goods are imported they became a part and parcel of most of the other like goods in India. Their Lordships also held that there was no duty to keep the permit with the consignment of imported goods for all times and at all places. It was also held that the importer was not under a duty to keep the consignment intact in his hands. He could sell portions of it to different buyers and he could not give the permit to every consumer. While dealing with Section 5(3) of the Land Customs Act their Lordships held that the said section was not infringed when the carrier did not produce the permit covering the goods and the goods could not be confis.c.ated under that section. In such circumstances, it was his contention that the ball-bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with. 5. Shri Biswas, the learned S.D.R., in reply contended that no prejudice is shown to have been caused to the respondents by non-supply of such materials. He also distinguished the cases cited by Shri Prantosh Mukherjee, the learned Advocate for the respondents, stating that in those cases, relied on by respondent (i) There was no specific information; (ii) The non-existence of the firm was not the factor which was available in those cases. 6. I have heard both the sides in detail. The points that arise for my determination are as follows: (i) Whether the Department has dis.c.harged the initial burden as is sufficient to raise a presumption in its favour with respect to smuggled nature of the goods? (ii) If so, whether the respondents had dis.c.harged that burden? (iii) Whether the confis.c.ation of the goods in question and the imposition of the penalty on the respondents are warranted on the facts and circumstances of this case? 7. Point No. (i): The decision of M/s. Jain Enterprises reported in 1986 (25) E.L.T. 811 relied on by the learned S.D.R., Shri M.N. Biswas does not apply to the facts of this case. In that case, there was an inculpatory statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The Tribunal at para 16 of that decision further held as follows : The Collector s observation in that case that the fact that the seized goods were imported and that such imports were 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 the goods was repelled by the Tribunal holding that such a conclusion was unjustified. Relying on the above observations the learned Advocate contended that the mere fact that these goods which are imported are to be given to the actual users and the respondents are not the actual users are not sufficient to hold that these goods are smuggled. I find force in this argument of the ld. Advocate for the respondents. Moreover, this fact was not raised in the show cause notice also. The Department should have placed all these necessary facts to sustain the charge in the show cause notice which was not furnished to the respondents. Hence, this argument which is taken for the first time before this Tribunal is not sufficient to hold that the goods in question are smuggled in character. The only ground on which the learned Additional Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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