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TMI Blog1992 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... s with marking of 'Indana' have been stored in the transit godown of M/s. Surekha Air Transport, Kalipur, Gauhati, the Customs Officers of Gauhati visited the said godown on 18-12-1984 and examined them. 3. On examination, a huge quantity of skimmed milk powder packed in old and worn-out bags with markings of 'Indana' were found. On demand, the Manager of M/s. Surekha Air Transport produced one destination copy of consignment Note No. SLC/ SLGR-495 X 204 dated 5-12-1984, one cash/credit memo No. 106 dated 5-12-1984 of M/s. Indra Trading, Fatak Bazar, Bill No. Nil dated 5-12-1984 of Sri Jallaluddin, Contractor, Masjid Road, Paona Bazar, Imphal-I, and one typed copy of the quotation for supply of Indana Milk Powder issued by Purti Depot Sena Seva Corporation, Supply Depot, ASC, Hasinera, dated 6-10-1984 which were stated to be given by the Party. A letter was issued by the Customs Officer to the Manager of the Transport Corpn. directing him to deliver/despatch the subject goods in the presence of the Customs Officer. 4. On 26-12-1984, the appellant, Shri Paresh Ch. Paul of Silchar appeared before the Customs Officer, Customs & Central Excise, Gauhati and introduced himself as a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with law. 9. The learned J.D.R., Shri B.B. Sarkar contended that even though these goods are not notified items, the circumstances in this case are sufficient for the Department to discharge the burden cast on the Department. In support of his contention he relied on the following decisions :- (i) 1983 (13) E.L.T. 1486; (ii) 1986 (25) E.L.T. 811; and (iii) 1986 (26) E.L.T. 649. 10. We have considered the submissions. The point that arises for our determination is whether the Department has discharge its initial burden that the goods in question are smuggled goods. The learned J.D.R., Shri Sarkar relied on the circumstance that these skimmed milk powder were packed in some packages and some of the packs were having foreign markings. He also stated that in the first instance, Shri Paresh Chandra Paul, the appellant herein, claimed the goods as a partner of M/s. Jalaludin Contractor, Silchar, Assam, but later disclaimed the same and Sri Jalaluddin claimed these milk powder packets. He stated that Shri S.K. Agarwal, a local wholesale dealer of Indana of Sapan Skimmed Milk Powder, as well as Shri R.R. Chawla, Regional Manager of the Foremost Dairies Ltd., had stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seizure was made on specific information that those being smuggled into India from Bangladesh. All these prove beyond doubt that they were ..smuggled into India and are liable to confiscation". It is, therefore, seen that the mere packings are not sufficient to hold that these are smuggled goods. The method of: packing is not sufficient to shift the burden. In the case of Sukumar Mondal relied on by the learned Counsel for the appellants, reported in 1990 (48) E.L.T. 56 (Tribunal), the Tribunal at paras 15 and 16 held as follows:- "15. We have said earlier that the appellants have contended that the marks of foreign origin as communicated by the department to them were there in some of the garments. There was no indication that they were there in all the garments. We feel that where the only basis on which the garments were confiscate was the marks of foreign origin, it would not be in order to confiscate all the garments as if all of them were of foreign origin, when admittedly such marks were found in only some of them. Further, the thrust of the judgments cited by the learned JDR regarding the effect of the marks of foreign origin is only that they were of foreign origin or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had purchased them from authorised auction sources. The claim regarding the method of acquisition of the goods covered in the present appeal though not exactly similar to the one made in the earlier case decided by the Tribunal is not such as to warrant a conclusion that they are smuggled goods. The Tribunal had held in the said case that though all the goods in question were of foreign origin which fact was not a matter in dispute, there could not be any presumption whatsoever that they must have been smuggled into India. The Collector's observation in that case that the fact that the seized goods were imported and that such imports were restricted or prohibited and that the seizure was effected on the basis of specific information, would give rise to a presumption of the smuggled character of the goods was repelled by the Tribunal holding that such a conclusion was unjustified. The goods were neither notified under Section 123 of the Customs Act, 1962 nor covered by Chapter IVA of the Act. Hence, placing the burden on the appellants to prove the lawful origin of the goods in India was not justified. The ratio of this case squarely applies to the present appeal." Thus, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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