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TMI Blog1991 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... on Petitions before the Government of India against a common order of the Central Board of Excise and Customs in Order No. 333 to 338 of 1979 dated 26-11-1979. By virtue of that order the Board confirmed the orders passed by the learned Collector of Central Excise and Customs, West Bengal, Calcutta in Order No. 1/Cus/WB/77 dated 31-1-1977. In terms of that order the diamonds belonging to these appellants were confiscated. 3. The facts in brief are that on credible information received on 31-5-1974 the Customs Officers of Customs Divisional Preventive Unit of West Bengal Collectorate, Calcutta by virtue of a warrant searched the premises of one Shri Rawatmal Agarwal at P-119, New C.I.T. Road, Calcutta. Shri Agarwal and some other persons were there at the time of search. The diamonds shown at Serial No. 9 of the Schedule to the show cause notice i.e. (a) 6 pcs. of diamonds weighing 9 Cts. 60 Cents; (b) 122 pcs. of diamonds weighing 25 Cts. 80 Cents; and (c) 7 pcs. of diamonds weighing 1 Ct. 45 Cents - Valuing Rs. 31,000.00, Rs. 25,000.00 and Rs. 1,500.00 respectively, along with other Jewels studded with diamon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities should be set aside. It was also pointed out before us that when these documents were produced by the appellants an enquiry was conducted with respect to these documents and the report of that enquiry had demanded by the appellants. But that report was not given to the appellants and without discussing about those reports and enquiry the whole case was decided. It was, therefore, contended that by virtue of Sec. 114 of the Indian Evidence Act the presumption has to be drawn that if produced those enquiry reports will go against the Department. He also contended that since Smt. Sudha Phuken was not produced for cross-examination an adverse inference has to be drawn against the Department. In support of his contentions he relied on the following decisions : (i) Order No. 359/Cal. 83-2174 dated 28-7-1983 passed by the E.R.B., Calcutta in the case of Shri Madan Lal Goenka v. Collector of Customs, Calcutta; (ii) Order No. 1273/81 of the Government of India on Customs Revision Application dated 5-10-1981 in the case of Shri D.P. Agarwal v. Appellate Collector of Customs, Calcutta; (iii) 1988 (34) E.L.T. 331 in the case of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial to come to the conclusion that these goods were smuggled into India. But these diamonds never had any foreign markings. There are also Indian diamonds available. The opinion of Smt. Sudha Phuken that these diamonds do not appear to be cut into India cannot be relied upon. In the first instance, her original report is not supplied to the appellants and the same is not produced before the Tribunal. The Director of Petrological Laboratory had stated that Smt. Sudha Phuken examined them and opined that they did not appear to be cut in India. This report of the Director is only a hearsay one. The primary evidence is the report of Smt. Sudha Phuken. Even otherwise, what is relevant is the opinion of an expert. There is nothing to show that Smt. Sudha Phuken is an expert in the identification of such diamonds. The report of the Director only states that this was decided by the officer, Shrimati Sudha. But there is nothing on record to show that Smt. Sudha is an expert in the examination of such diamonds. It is only the opinion given by an expert which is relevant to come to the conclusion as to whether these were Indian diamonds or foreign diamonds. Even on that count, much creden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." He also relied on the opinion of the Gemmologists of Jaipur who stated that there are no tests known to them till now as a means of ascertaining the origin of Diamonds either before or after cutting and polishing. He also relied on the opinion of the Gemmological Institute of India, Bombay, wherein with reference to a letter they stated in reply as follows: "Dear Sir, Please refer to your enquiry No.....dated 4th August, 1976. There are no tests known to us till now as a means of ascertaining the origin of Diamonds either before or after cutting and polishing." It is, thus, clear that the opinion of Smt. Sudha Phuken which could not be decided by cross-examination, is insufficient to come to the conclusion that these diamonds are not of Indian origin. Accordingly, on this account, the appeals are to be allowed by holding that the Department has to establish that these diamonds are smuggled goods and it is not for the appellants to prove that these are not smuggled goods. Even otherwise, it is seen that both the appellants have claimed these diamonds. The appellant, Shri Himatlal D. Shah claimed the diamonds on 1-6-1974 i.e. on the next date of seizure. The appellant, Shri O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported into India. Cut and polished diamonds are obtained from the rough diamonds imported into India. From the provisions of Sections 110 and 123, it is abundantly clear that the reasonable belief of the believer should be that the goods are smuggled goods. At the time of seizure no ground existed for the seizing officer to believe that the seized diamonds were smuggled goods. In the circumstances the seizure effected cannot be considered as having been done in the reasonable belief that the seized diamonds are smuggled goods. If the seizure was not in the reasonable belief that the seized diamonds are smuggled goods, then the burden would not shift to the appellants to establish that the seized diamonds are not smuggled goods. The department had not adduced any evidence to establish that the seized diamonds are smuggled goods." It is, thus, clear that there is no reasonable belief for seizing the diamonds and even otherwise, the appellants had produced certain documents to show that they have licitly acquired the same. Those documents were got verified by an enquiry and without adverting to that enquiry and the documents produced by the appellants a decision was reached by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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