9911796707
TMI Blog1992 (2) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... tial premises of the appellants was searched by the Income tax authorities under the Income-tax Act which resulted among other things, 10 pieces of gold weighing 10 tolas each (total 1166.400 gms). These 10 pieces of gold so recovered were said to be gold biscuits having foreign markings and were taken into possession by the Income-tax authorities for taking action under the Income-tax law. Since the gold having foreign markings attracted the provisions of the Customs Act, 1962, the appellants were summoned by the Asstt. Collector/Superintendent (Preventive) Central Excise, Udaipur for investigation. The statement of the appellant was also recorded on 12-12-1985 under Section 108 of the Customs Act, 1962. The appellant admitted the fact of the search of the business and residential premises by the IT authorities on 11th and 12th April, 1984 and also admitted the fact of recovery of 10 gold pieces (gold biscuits) weighing 1166.400 gms of 22 carat purity from his residential premises. On inquiry, the appellants stated that the gold in question was kept in a box which was given to his married son namely Sh. Narinder Doshi for safe custody by his mother who is deceased. He further stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange Regulation Act, 1973. Therefore, they were called upon to show cause as to why the seized gold weighing 1166.400 gms valued at Rs. 2,26,000 should not be confiscated under Section 111 of the Customs Act, 1962 and why penalty should not be imposed under Section 112 of the Act for contravention of various provisions of law. It was also stated in the show cause notice that the burden of proof that the seized gold was not smuggled one, was on the appellant and that he was required to discharge this burden under Section 123 of the Customs Act. 4. The show cause notice was also issued to the appellant Sh. Udailal Joshi. The appellant filed his reply to the show cause notice dated 28-1-1985. In their reply, they contended that the panchnama dated 30-7-1986 merely stated taking over of the said 10 gold biscuits by CE officers and formally seizing them. Therefore, the appellants contended that 30-7-1986 cannot be treated as the date of seizure. It was contended that the date of seizure must be treated as 11/12-4-1984 when the said 10 gold biscuits had been recovered by the Income-tax officers. It is contended that the customs authorities had given direction to IT authorities immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of his mother and not for a commercial consideration and therefore, no vouchers or bills of purchase, had been obtained. 7. He had stated that he was a partner in the firm M/s. London Stores, Udaipur alongwith his two sons as partner. He stated that his firm deals with sale of Indian made foreign liquor and the same was started in the year 1944. He has stated that he had categorically denied before the officers who had recorded his statement on 12-12-1985 about dealing in sale/purchase of gold at any time. He has stated that he had admitted before the Income-tax officers about the recovery of silver ornaments as well. He has stated that he had told the officers that he had no knowledge of the said gold bars having been placed by her mother in his box. 8. The statement of Narinder Doshi was recorded on 31-3-1986. Sh. Narihder has confirmed the facts stated by his father in recovery of 10 gold biscuits. He has stated that his grand-mother had given the box to be delivered to Tej Singh, his father s younger brother. He has stated that he has come to know the contents of the box only when the Income-tax officers searched the premises and opened the box. He has also contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that property which has been inherited cannot be brought within the ambit of acquisition and possession as contemplated under the proviso to section under which the appellants have been charged. In this context, she has relied on the ruling of Abaji Nana Patil v. Gold Control Administrator [1985 (21) E.L.T. 483]. She also contended that the Income-tax authorities had been made known about the recovery of the gold pieces on the very day of the raid and the Customs authorities had also taken the statement on 12-12-1985 and therefore, this should be the date to be considered for seizure of the gold biscuits and that the show cause notice having been issued on 30-10-1986, is time-barred under Section 110(2) read with Section 124 of the Customs Act. In this context, she has relied on the ruling in the case of I.J. Rao, Asstt. Collector v. Bibhuti Bhushan Bagh [1989 (42) E.L.T. 338]. 11. Sh. Mehta, learned DR submitted that the date of seizure in this case is only from the date on which the Mahazar were drawn by the Customs authorities and that the date on which the gold was handed over by the Income-tax authorities to the Customs authorities and the date of seizure is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 read with Section 3(1) of Imports Exports (Control) Act, 1947 and Section 13 of the Foreign Exchange Regulation Act, 1973. 14. The admitted facts in this case are that the seized gold biscuits were bearing foreign markings and that they were recovered from the premises of the appellants. It is also admitted that the appellants family is a Hindu Joint family and the assets of the family had not been partitioned and there was a dispute pertaining to the division of the assets. It is also admitted that the appellants and his two sons were carrying on business in Indian foreign liquor on partnership basis. It is also admitted that the appellants does not have any documentary evidence in proof of acquisition of the seized gold biscuits having foreign markings by his father. It is also admitted that his mother had not informed the authorities about the possession of the foreign marked gold biscuits and no declaration had been filed regarding its possession under the Income-tax Act. The appellants have also admitted that there is no voucher, bills for acquisition and purchase of the gold biscuits. However, he was contended that the gold seized with foreign markings is a i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve recorded the statement on 12-12-1984 and that the show cause notice having been issued on 30-12-1986, is clearly barred by time. As has been rightly contended by the learned DR, the time for issue of show cause notice commences from the date of seizure of the goods. In this case, the department has seized the goods from the Customs[ii] authorities by panchnama dated 30-7-1986 and therefore, the recording of statement on 12-12-1985, cannot be considered the date of seizure for the gold biscuits. Thus, the contention of the appellants that the proceedings are bad as the show cause notice having been issued after 6 months from 12-12-1984, is not sustainable. 16. The learned advocate has relied on the ruling rendered in the case of Abaji Nana Patil (supra). In this case, the Income-tax authorities had searched the premises. On search, 96 gold coins were found concealed in a wall inside the Ganesha Cup board and 6 gold chips were found-in the cup board itself. The appellants in that case had denied knowledge about the existence of the gold coins recovered from the walls and had contended that the same could have been secreted by father, when he was only 15 years old. He had also pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the petitioner could not be said to have contravened the provisions of the Gold (Control) Act, 1968. It was further urged that there was no positive finding controverting the assertions of the petitioner that the item in question had been held by the petitioner since 1939. It appears that the said contentions of the petitioner are based on misapprehension of the provisions of the Act. Under Section 8 of the Act, as I see it, possession of primary gold after the Act coming into operation, would be contrary to law unless the same is held in the manner as provided by the Act. Section 16, sub-section (1) and sub-section (2) and Section 5 deal with declaration in connection with articles and ornaments. In view of the definition provided under the Act, primary gold is neither article nor ornament. Therefore, in case primary gold is held, the question whether beyond certain quantity, an individual or a family is required to declare such a primary gold, has nothing to do with the requirement of Section 16 as such and in that view of the matter, the decision of this court in the case of Jay Krishna Saha v. D.M. Lal (1981 Cal WN 539) (AIR 1977 Cal 468) and the decision of the Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department is not required to prove its case with mathematical precision to a demonstrable degree for in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it all exactness is a fake". El Dorado of absolute proof being unattainable the law accepts for it, probability as a working substitute in this work a day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man s estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp 63 at p 65 According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is concerned with their illicit importation or exportation. It is enough if the department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the department has to prove further that the person proceeded against was concerned in the smuggling. 34. The propriety and legality of the Collector s impugned order had to be judged in the light of the above principles. 35. It is not correct to say that this is a case of no evidence. While it is true that no direct evidence of the illicit importation of the goods was adduced by the department, it had made available to the Collector several circumstances of a determinative character which coupled with the inference arising from the dubious conduct of Baboothmull and Bhoormull, could reasonably lead to conclusion drawn by the Collector that they were smuggled goods. These circumstances have been set out by us earlier in this judgment. We may recapitulate only the most salient among them. 20. The learned Collector has imposed a penalty of Rs. 5,000/-. The value of the gold seized is Rs. 2,26,000/-. Therefore, the penalty imposed is not on the higher side. I do not see any reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
