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TMI Blog1990 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... tate the names and addresses of the brokers from whom he had purchased the same. The gist of his statement made to the officers is reproduced below: On search Custom Officer recovered misc. goods of foreign origin viz. Quartz Clock, Razor, purse, socks, readymade dress etc. On recovery they demanded documents/bills/challans for the goods. But I failed to produce the same in support of my legal possession and acquisition. I do not possess only such documents. I have purchased these goods of F/origin different brokers whose names and addresses not known to me. I kept all these goods on racks showcases of my shop for retail sale there from. 3. On the basis of this seizure memo and the statement made before the Customs Officers the appellant was issued with a show cause notice dated 7-1-1986 under Sec. 3(1) of the Import/Export (Control) Act, 1947 read with Section ll of the Customs Act, 1962. The appellant was called upon to explain as to why the goods should not be confiscated under Sees. 111(d) and 111(p) of the Customs Act, 1962. 4. The appellant submitted his reply dated 10-3-1986 containing inter alia that few items of goods in the seizure list were not of foreign origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for seizure as the same had not been notified. He, further, submitted that the show cause notice had indicated synthetic fabrics etc. without mentioning the particulars of the items seized as such the order-in-original confiscating the entire goods was not legal. He relied upon the following citations: (i) 1987 (27) E.L.T. 524; (ii) 1990 (29) ECR-96; (iii) 1986 (26) E.L.T. 92; (iv) 1985 (25) E.L.T. 521; (v) Order No. 232/Cal/1989 dated 11-9-1989 passed by East Regional Bench, Calcutta. 6. Shri M.N. Biswas, the learned S.D.R. submitted that the party had clearly admitted that the goods in question were of foreign origin and the circumstances of the case as well as the admission of the party are sufficient to discharge the burden of proof cast on the Department to show that the goods were of smuggled nature. He, further, submitted that the party had not produced any bills/vouchers/documents to show that he had purchased the same from a proper source. In that event of the matter the burden had shifted to the party to show that they had not purchased smuggled goods of foreign origin. He further submitted that the show cause notice had given the list of goods as in annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igin. The ruling of the Supreme Court in the case of Collector of Customs, Madras v. D. Bhoorull reported in 1983 (13) E.L.T. 1546 = 1985 ECR 2284 SC is directly applicable to the facts of this case. The facts of the case as in this ruling of Supreme Court are very much identical and similar to be one in this appeal. The Supreme Court has held in paras 26, 42 to 45, which are as under: 26. Large-scale smuggling of gold or other goods into India may pose a threat to the economic and fiscal interests and policies of the State. Such illicit trade is often carried on by organized international smugglers in the secrecy of the underworld. The more it is organized, the less are the chances of its detection, and greater the difficulty of proving the offences relating thereto. Laws have therefore been enacted in most countries, which mark a partial or wholesale departure in matters relating to smuggling, from the general principle of penal law, viz., that it is for the State or its Department to prove the offence against the accused or the defendant. Thus in England, Section 290(2) of the Customs and Excise Act; 1952 provides that where in any proceeding relating to Customs or Excise any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity of the relative triviality of the issues at stake, in some special type J of cases, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was traveling without a ticket, a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within his special knowledge. Similarly, if a person is proved to be in recent possession of stolen goods, the prosecution will be deemed to have established the charge that he was either the thief or had received those stolen goods knowing them to be stolen. If his possession was innocent and lacked the requisite incriminating knowledge, then it will be for him to explain or establish those facts within his peculiar knowledge, failing which the prosecution will be entitled to take advantage of the presumption of fact arising against him, in discharging its burden of proof. 44. These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and/or sources of acquisition in support of his claim that the goods seized from his shop were acquired/possessed and/or imported lawfully. In absence, the goods are liable to confiscation and since so ordered is correct in law. However, as regards the goods appearing at Sl. Nos. 5 (3 pcs. silver tray of foreign origin), 9 (12 nos. twin blade razor of foreign origin) and 19 (10 nos. readymade dresses believed to be of foreign origin), I find that these goods described as such in the seizure list do not go to assume that they are definitely of foreign origin in absence of any visible marks of foreign brand and/or specific country of foreign origin on them. Goods merely described as of foreign origin is a vague term having no legal force to sustain its lawful seizure and confiscation. In the above view, I order release of the goods under Sl. Nos. 5, 9 and 19 of the seizure list as mentioned above." 9. The Assistant Collector in his order has not rejected the party s contention that item nos. 12 to 21 of the seizure list did not bear the country of origin. The Collector in his order, as underlined by me above, has held that the goods merely described as of foreign origin is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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