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TMI Blog1999 (6) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... d over to Shri Manick Kangsha Banik for sale at Calcutta on commission basis. 2.3 The officers also found certain discrepancies in the Consignment Notes and the other documents produced by the driver at the time of seizure. 2.4 On the above basis, show cause notices were issued to all the persons proposing confiscation of the seized items and imposition of penalties on the persons concerned. The Additional Commissioner (Preventive), West Bengal, Calcutta vide his Order-in-Original dated 7-8-1995, confiscated the scrap in question and imposed personal penalties on the various persons. The vehicle in question was also confiscated with an option to redeem the same on payment of a redemption fine of Rs. 50,000.00. 2.5 On appeal against the above Order, the same was upheld by the Commissioner (Appeals). Hence the present appeals before the Tribunal. 3. Shri B.N. Chattopadhyay, learned Consultant for the appellants drew my attention to the inventory of the seized goods appearing at page 15. Under the Column - Description of Goods - some of the items have been mentioned as being suspected to be of foreign origin having inscription of Bangladesh Rifles. In some of the items, no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no direct or indirect evidence on record to reflect upon the smuggled character of the items in question. He also submitted that the adjudicating authority has also relied upon the fact that wrong number was written on the Number-Plate of the truck in question. He submitted that the driver in his statement recorded by the Officers under Section 108 of the Customs Act, 1962, had very clearly stated that he had taken the wrong Blue Book of the truck in question, which mistake he realised at the Check Post and as such, he wrote the other number on the Plate with the mobile oil to avoid any further harassment. He submitted that in any case, writing of a wrong number on the Number-Plate by the driver is not indicative of smuggled nature of the metal scrap. 3.1 As regards the shells, he submitted that the same have been held to be of foreign origin on the basis of mere visual examination, which is not sufficient. He submitted that the appellants stand that the goods have been purchased from others have been corroborated by their statements. But the adjudicating authority has also penalised them. 3.2 As regards the confiscability of the truck in question, he submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they were smuggled into the country, charge of smuggling cannot be maintained. (d) Collector of Customs Central Excise, Chandigarh v. Shri Balkrishan reported in 1987 (29) E.L.T. 65 (Tribunal) = 1998 (11) ECR 325 (CEGAT : ERB) The ratio of the said decision is also to the effect that burden of proof in respect of the above notified foreign goods is on Customs Authorities that the same were smuggled items. Goods of foreign origin cannot be confiscated unless so proved. (e) Manjit Singh Chandoke v. Collector of Customs, Bombay reported in 1986 (26) E.L.T. 649 (Tribunal) The ratio of the said decision is to the effect that the goods not notified and not proved to be smuggled goods, were not to be confiscated. Mere suspicion, however strong, is no substitute for proof. It was also held in the said case that mere admission that goods were purchased from passenger from abroad is not sufficient to establish that the goods were smuggled ones. (f) M/s. Karendrakumar Company Others v. Superintendent of C. Ex. and Others reported in 1989 (42) E.L.T. 381 (Bom.) = 1989 (22) ECR 565 (Bombay) The Honourable High Court held in the said case that the visual inspection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much of evidence, either circumstantial or direct, as is sufficient to raise a presumption with regard to existence of the fact sought to be proved. He submitted that there is a lot of evidence in these cases, raising suspicion against the appellants and now it was for the appellants to come out with the defence and to disclose the sources from where they had purchased the metal scrap in question. He also submitted that the interception of the truck and the subsequent seizure was on the basis of information which is a very important factor as the information was found to be true by the Department. The story of change of Number-Plate because of wrong carrying of Blue Book of the truck in question by the driver is too far-fetched and as such unbelievable. The goods were undisputedly carrying accounts of foreign markings. The appellants have also failed to correlate the goods with the purchase documents, as observed by the adjudicating authority. There is discrepancy in the Consignment Note as regards the lead dross whereas the Consignment Note shows same to be 5200 kgs. Actually it was 55 kgs. The consignees of the goods shown in the bills have also denied having made any requisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the Department. Whether such an initial burden placed upon the Department under the law gets shifted to the appellants, depends upon the evidence - circumstantial or direct. As such the ratio of all the decisions relied upon by both the authorities, is applicable as far as the legal issue is concerned. The evidences in each case are different and have to be taken into consideration while disposing of a particular case. In the instant cases, I find that the Department has relied upon a fact that there was an information about the movement of the said smuggled items. The information, I am of the view, cannot be made the basis for holding the goods as being of smuggled character. Carrying of a false Number-Plate by the driver may throw some doubt about the smuggled nature of the goods. But this fact by itself is not sufficient to hold so. Moreover, the driver in his initial statement recorded by the Officers, had given reasons for putting a false number en route, when the mistake of carrying of wrong Blue Book was detected by him at the Check Post. This action of the driver cannot be made the basis for holding against the appellants in the absence of any connection of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled goods. Similarly, in the case of Betha Pydiraju relied upon by the learned SDR, the circumstances taken into consideration namely the fictitious names of the consignors, misdescription of the goods by a false invoice and not claiming the articles for a considerable length of time, were the factors, which went against the appellants being a bona fide purchaser of the goods without knowing the same to be of smuggled character. The case of Manjit Singh Chandoke referred to by the Departmental Representative, was a case of import of the goods and the ratio is not applicable in the instant cases. The circumstances in the instant cases are altogether different. The driver of the truck, on an interception, produced the challan for transportation of the goods in question. A minor discrepancy in one of the challans is not sufficient to hold against the appellants when the description and the weight in all other challans were found to be correct. As such I find that there is no sufficient evidence on record to hold that the Department has been able to discharge the initial burden placed upon them under the law and to shift the same to the appellants. As there is no direct evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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