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TMI Blog1991 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... . In his statement, Shri Sumer Chand Jain stated that he had purchased the said watch movements and the two pieces Citizen watches at Delhi the previous day through one Shri Rakesh, a broker of Delhi against cash payment of Rs. 40,000/- without cover of a purchase bill/voucher and he did not know the full name and address of the said person. The Customs Officers seized the watch movements and two pieces watches on the reasonable belief that they had been smuggled into India in contravention of the provisions of the Customs Act, and were liable to confiscation. The scooter was also seized. The 96 pieces HMT watches and 36 Bentex chains recovered from Shri Jain were later on released after proper verification by the Seizing Officers. Shri Nagin Chand Jain, the second appellant before us, subsequently claimed the scooter by a letter dated 25-6-1983. Show Cause Notices were issued to both the appellants on the ground that the watch movements and watches of foreign origin which were liable to confiscation appear to have been brought into India in contravention of the prohibition imposed under Imports (Control) Order No. 17/55 dated 7-12-1955 as amended and as made applicable to the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the address given was fake. He took the further plea that the description of watch movements as given in the Recovery Memo is ST 96 SWISS MADE TYPE Movement complete 17 Jewels (Swiss Seventeen) . This clearly shows that these movements were not movements of Swiss origin and this fact was corroborated in the affidavit of the supplier that the movements had been assembled by him out of parts of wrist watches. His further contention was that as per Recovery Memo, itself, there was no reasonable belief to hold that the watch movements were of Swiss origin and were therefore, liable to confiscation. 4. While adjudicating the case, the Deputy Collector of Customs (Technical) has accepted the appellant s contention that on the date of seizure watch movements were not notified under Section 11B, nor under Section 123 of the Customs Act. However, he has come to the conclusion that the goods were liable to confiscation because the receipt produced turned out to be fake on enquiry as M/s. M.S. Traders were not found to be in existence at the address mentioned in the receipt. This is besides the fact that at the time of seizure Shri Sumer Chand Jain had admitted that he had no proof of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Arguing on the two appeals, Shri Rajesh Jain, the learned Counsel for both the appellants, besides reiterating the grounds of appeal, also referred to the decision of the Tribunal in the case of P.C. Aggarwal v. Collector of Customs [1990 (47) E.L.T. 45] and submitted that since the watch movements were neither notified under Section 123 nor under Chapter IVA of the Customs Act, the burden of proving that they were smuggled rested on the Department and not on the appellant. Shri Jain also cited the decision of the Tribunal in the case of Sukumar Mondal v. Collector of Customs (Preventive) [ 1990 (48) E.L.T. 56] and submitted that foreign markings on the goods are not sufficient to establish smuggled nature of the goods. Since this burden had not been discharged by the department, confiscation of the watch movements and imposition of penalty on the appellant was not justified. He reiterated that the words Swiss Made Type on the watch movements did not mean that they were made in Switzerland. 9. Shri G. Bhushan, the learned SDR, submitted that there was no doubt that the watch movements were of foreign origin because of the inscription on them at two places - Swiss Made typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. -Thus, the burden of proof was shifted to him. 12. The appellant put forward an explanation - he himself had not visited the shop; it was the broker who supplied him the watch movements initially without a bill/invoice and later, on contacting, he furnished not only an invoice but also a supporting affidavit. This would mean that the appellant had the address of the broker with him. If the explanation was genuine, there was no reason why the appellant, on learning what the enquiries had revealed, would not have again contacted the broker, ascertained the truth and, even tried to produce him before the adjudicating authority as a witness because goods of substantial value had been seized and the apprehension was that because the explanation given by him was found to be false, the goods would be confiscated. 13. When all these facts are carefully studied and the circumstances in which they have occurred, a very close parallel with the case of Bhoormull (supra) can be established. 14. I would have to now carefully consider the plea that the goods are not of foreign origin and not being notified under Chapter IVA and Section 123 of the Customs Act, the burden of proving that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, the more important question for establishing their liability to confiscation is their foreign origin and not on whom lies the burden of proof. It is clear, that the stage for that purpose has long been passed. 15. When all the circumstances are taken into account and the principles laid down by the Supreme Court in Bhoormull s case (supra) are applied, one would be led to the inescapable conclusion that the watch movements being carried on the scooter were of foreign origin and were smuggled into India. They were therefore, liable to confiscation and so was the scooter on which they were being transported. I do not think that in the circumstances of this case, the appellants have made out a case for setting aside the order of confiscation even of the two citizen watches. The order of confiscation of the watch movements, the watches and the scooter is therefore, upheld. I do not think that the fine in lieu of confiscation is excessive. I do not think that in view of the facts and circumstances discussed, Shri Sumer Chand Jain can be said to have dealt with smuggled goods without knowledge and the imposition of penalty of Rs. 2000/- on him is unjustified. 16. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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