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TMI Blog1995 (2) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... he bank of Hooghly river in the midnight of 19/20th July, 1992. The Customs Officers went there at 1 a.m. on 20-7-1992. They found vehicle WBI 8252 coming from Kulpi. They intercepted the vehicle in between Kulpi and Diamond Harbour Road at 5.30 a.m. on 20-7-1992. The same was brought to the Customs House and on examination, it was found containing 29 bags (1400 kgs.) cinnamon, 20 kgs. of cardamon and 17.5 kgs of raisin of foreign origin valuing about Rs. 3 lakhs. The contraband goods and the lorry were seized and after investigation, show cause notice was issued to the Appellants. He replied to the same. After adjudication, the learned Additional Collector confiscated the goods in question including the lorry and imposed as penalty on the Appellant. In Appeal, the order was confirmed but the Collector (Appeals) released 20 kgs. of cardamon and 17.5 kgs. of raisin to the Appellant. 3. The learned Advocate Shri D.N. Bhowmick along with Shri K. Chatterjee, learned Consultant, appearing for the Appellant contended that there is no proof to show that cinnamon is of foreign origin. They are not notified goods. So department has not discharged its burden. Therefore, the confiscation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department. It was contended that the confiscation of the cinnamon and imposition of penalty is not in order. But the contention of the learned SDR is that the circumstances and other facts available on record is sufficient to discharge the burden cast on the Department. 6. We have considered the submissions. The point for determination whether the confiscation of cinnamon is in accordance with law. As per the information, the officers proceeded to Kulpi and at 5.30 a.m. the vehicle in question was intercepted. These cinnamon were found in 29 bags and all the bags are having original tags as Jeet Chittagong, Star Chittagong and Tiger Chittagong and there were also certain Chinese inscriptions. In the case of Balumal Jamnadas Batra v. State of Maharashtra, the Supreme Court held as follows :- The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prudent man s estimate as to the probabilities of the case. Further, at para-33, their Lordships held as follows :- 33. Another point to be noted is that the incidence, extent and nature of the burden of proof for proceeding for confiscation under the first part of the entry in the 3rd column of clause (8) of Section 167 may not be the same as in proceedings when the imposition of the other kind of penalty under the second part of the entry is contemplated. We have already alluded to this aspect of the matter. It will be sufficient to reiterate that the penalty of confiscation is a penalty in rem which is enforced against the goods and the second kind of penalty is one in personam which is enforced against the person concerned in the smuggling of the goods. In the case of former, therefore, it is not necessary for the Customs authorities to prove that any particular person 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. It is also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were licitly purchased by him. Thought he stated that the said goods had been purhased from Bowbazar, not a single scrap of paper is produced to prove their purchases. This is within the knowledge of the Appellant and under Section 106 of the Indian Evidence Act if he fails to disclose the source of acquisition, an adverse inference has to be drawn against him. In such circumstances, we confirm the confiscation of the cinnamon in question. However, no specific reasons are furnished for the absolute confiscation of the same. In the circumstances of the case, it is seen that the department is valuing the same at about Rs. three lakhs. There is no specific evidence to show the valuation made by the Department as far as the cinnamon is concerned. In the circumstances, we allow the Appellant to redeem the same on payment of a redemption fine of Rs. 1 lakh and he should exercise this option within a period of two months from the date of receipt of this order. 6. Since the Appellant has claimed these goods as that of his, he is a person concerned in the conveyance of the smuggled goods and is liable to be penalised under Section 112(b) of the Customs Act, 1962. But the learned Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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