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TMI Blog1990 (9) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on Shri Kuljit Singh, appellant in C-380/88, who is proprietor of M/s. Shammi Road Carriers and another sum of Rs. 10,000/- as penalty was imposed on M/s. Shammi Road Carriers, the appellant firm in Appeal No. C-310/89. Being aggrieved by the above-said orders these two above captioned appeals have been filed before this Tribunal with a prayer to set aside the impugned order, with consequential reliefs to the appellants. 2. The brief facts of the case are that on information from the Assistant Collector of Central Excise (Anti-Evasion), Bolpur that 13 trucks of M/s. Shammi Road Carriers, Calcutta, had been detained by the Sales Tax Authorities at Duburdih, Barakar and that some of the trucks contained foreign goods without licit documents, the Customs officers of P PD Unit, W. B. Calcutta, with assistance of the Commercial Tax Officers examined the trucks and found that four trucks bearing Registration Nos. DIL-922, WMK-9828, WMK-7167, and WMK-6379 contained foreign goods along with indigenous goods. Since the trucks were under the custody of the Commercial Tax Authorities and they had certain procedure to observe under the Commercial Tax Act in respect of the said trucks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of foreign origin viz. Bearing, Dry Fruits, collectively valued at Rs. 3,83,120/- were recovered. In the said truck 57 items of indigenous goods like pressure cooker, mirror, kajal, battery, black paper etc. valued at Rs. 2,25,150/- were recovered. The value of the said carrier truck was determined at Rs. 1,50,000/-. Goods loaded in Truck No. WMK-9828 were examined on 15-2-1987 and goods of foreign origin namely Bearing valued at Rs. 58,140/- were recovered. 42 items of indigenous goods namely Ball Bearing, Battery, etc. valued at Rs. 2,58,812/- were recovered. The value of the said truck was also determined at Rs. 1,50,000/-. On examination of truck No. WMK-6379 on 5-3-1987 goods of foreign origin namely Honda Pump set, Suzuki Generator and cloves collectively valued at Rs. 1,50,150/- were recovered. The value of the truck was determined at Rs. 1,50,000/-. On examination of the goods - loaded in truck No. WMK-7167 on 7-3-1987 goods of foreign origin namely Honda Pump set, Suzuki Generator and Ball Bearing collectively valued at Rs. 2,10,690/- were recovered along with Misc. indigenous goods namely Battery, dry fruits, stationery goods etc. collectively valued at Rs. 1,57,28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the conditions of the order mentioned above. The Assistant Collector of Customs (Preventive), P P D. West Bengal, Calcutta under his C. No. VIII(10)26-Adjn./ P PD/WB/87 dated 17-9-1987 issued Show Cause Memo to the concerned persons/firms calling upon them to show cause to the Collector of Customs (Prev.), West Bengal, Calcutta as to why the subject goods under seizure should not be confiscated and why penalty should not be imposed under the provisions of law as cited in the said show cause Memo. 3. Personal hearing was granted to the appellant and the learned Collector passed the impugned order, as far as these appellants are concerned, which is challenged in these appeals. 4. The learned Advocate Shri Sanjay Bhattacharya contended before us that there was no case made out for the confiscation of the indigenous goods under Section 119 of the Customs Act, 1962.He also contended that the learned Collector erred in law and failed to determine that the subject goods were transported by the appellant in due compliance of the established normal practice followed in transport business and as such the four trucks in question were not liable to confiscation under Section 115(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so contended that foreign goods were found in the trucks in question in bulk quantity and on a reasonable belief they were seized by the authorities concerned under Section 110 of the Customs Act and, therefore, the burden shifted on to the appellants to prove otherwise and this burden not having been discharged by the appellants and as the vehicles were found carrying contraband goods the same were liable for confiscation under Section 115(2) of the Customs Act, 1962. He also relied on the decision of the Tribunal reported in 1986 (25) E.L.T. 811 (Jain Enterprises v. Collector of Customs). It was also contended that the appellants were concerned with the carrying of these smuggled goods the imposition of penalty is in accordance with law, as contemplated under Section 112 of the Customs Act, 1962. He also relied on the various reasonings mentioned in the impugned order and took us through the impugned extensively, to justify his contentions in this behalf, which we need not reproduce in extenso. 6. We have considered the arguments in details. The following points arise for our determination in this case : (1) Whether the confiscation of indigenous goods is justified on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried along with the foreign goods but to create and convey an impression that the consignments being transported were just innocuous indigenous goods. The indigenous goods which have already been provisionally released are, therefore, liable to confiscation under Section 119 of the Customs Act, 1962 and Shri Kuljit Singh and M/s. Shammi Road Carrier are also liable to penalty under Section 112 ibid." Hence, there is no finding that these were used for concealing smuggled goods and even otherwise the smuggled nature of foreign goods is not proved by production of satisfactory evidence which we will discuss while dealing with Point No. 2. Point No. 1 is answered accordingly. 8. Point No. 2 : In this case, none of the goods seized are notified under Section 123 of the Customs Act, 1962. They are also not covered by Chapter IV-A of the above Act. In such circumstances, the burden of proving the smuggled nature of the goods was on the department which is not discharged by them. The case reported in 1986 (25) E.L.T. 811 [Jain Enterprises v. Collector of Central Excise] is not applicable to the facts of this case. In that case bulk of Zip Fasteners were seized and there was inculpator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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