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TMI Blog1991 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ficials searched the premises of some US firms and seized some incriminating documents and correspondence involving the appellant. Those firms were prosecuted by the US Government. The photostat copies of those documents were forwarded to the CBI which were handed over to the Customs Department at Calcutta. The case of the department is that seized documents and correspondence revealed that the appellant had knowingly exported banned items of jungle fowl necks and jungle cock necks between 1966 to 1969 by concealing those banned items amongst the other non-prohibited necks like domestic cock necks, domestic game cock necks. Accordingly, a show cause notice was issued to the appellant by supplying the photostat copies of those documents obtained from the US Government and annexure 'J' was also given in the show cause notice wherein the prohibited items were shown and the items permissible were also shown and the allegation was that the items permissible were also liable for confiscation as they were used for concealing the banned items. The appellant sent a reply and after adjudication the Collector passed the order which was upheld by the Board, though they reduced the penalty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by stating that only high grade cock necks and B grade cocknecks were mentioned in the annexures. He contended that these should have been raised before the lower authorities or the first appellate authority. Sri Biswas contended that in departmental proceedings, the question of strict proof does not arise. He stated that the same has to be determined by the probability of the case. In this connection, he invited my attention to the decision of the Supreme Court in Bhormull's case reported in 1983 (13) E.L.T. 1546. He also relied on the following decisions in this regard :- (i) 1986 (26) E.L.T. 159; (ii) 1988 (33) E.L.T. 433 (Tribunal) = 1988 (14) ECR 485. He, therefore, contended that a mathematical precision is not required for proving the guilt of the appellant in this departmental proceeding and the same has to be decided on the probabilities of the case. In this connection Sri Biswas invited my attention to the order-in-original, and particularly, from pages 2 to 6 of the order. He took me through these portions of the order in detail. He contended that in annexure `J' the department had clearly stated what are the banned items which were exported. He also conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Even otherwise, it was his contention that the show cause notice is not barred in view of the decision of the Delhi High Court in the case reported in 1982 (10) E.L.T. 45 and also the Tribunal judgment in the case of 1989 (41) E.L.T. 464. He also contended that at the time of export the departmental officers examined the items and the banned items were concealed with the permissible items. Sri Biswas also contended that a few invoices attached to the show cause notice are only sample invoices and are not exhaustive. He contended that all these invoices are specifically mentioned in the annexure `J'. 6. In reply, Sri Samir Ghose, learned Advocate, stated that he would like to furnish some decisions in this regard as he could not bring those books as these decisions were cited by the learned S.D.R. only today. Accordingly, he is granted time up to 25th February, 1991. 7. Reply to the above said contentions Sri Samir Ghose stated that in a penal proceedings like this, the department has to prove, their own case and to bring home the guilt of the appellant. He stated that the case of Bhoormull is decided on its own facts. He also pointed out that in the case of Bhoormull, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision reported in 1990 (45) E.L.T. 109 and contended that the extended period can be invoked only if there is wilful mis-statement or suppression or fraud. He contended that there is no such fraud committed by the appellant, and the question of applying any extended period does not arise. 8. In reply, Sri Biswas contended that the case of Bhoormull is squarely applicable to the facts of this case. He stated that there is no evidence to show that these shipping bills were produced before the adjudicating authority. He stated that there were several consignments sent by the appellants and only with some of the consignments the charges are built by the department. He contended that there is nothing to show that these shipping bills related to these consignments on which the appellants are charged. He also stated that these are not authenticated shipping bills. He also stated that the authorities below have not gone merely on the preponderance of probabilities, but also had taken the clinching evidence available against the appellant which are the letters written by the appellant to the importers abroad. He also contended that these photo copies are duly confirmed by the US G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were all lying packed as if they had been freshly delivered, or were ready for despatch to a further destination. They were not lying exhibited for sale in the show cases of the shop. Baboothmull from whose apparent custody or physical possession, they were seized disclaimed not only their ownership but also all knowledge about the contents of the packages. He could not give a satisfactory account as to how those packages came into his shop. At first, he said that some next-door unknown broker had left them outside his shop. Some days later he came out with another version viz. that one Bhoormul had left them there. Eight days after, one mysterious person who gave out his name as Bhoormull laid claim to these goods. Despite repeated requisitions Bhoormull did not furnish any information regarding the source of the alleged acquisition of the goods. He never appeared personally before the Collector. He remained behind the scenes. He did not give addresses or sufficient particulars of the broker who had allegedly sold the goods to him on the 3rd June. Whatever cryptic information was given by him, was also conflicting. Despite two show cause notices, Bhoormull intransigently refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Evidence Act. ...... ...... ...... We cannot also accept the contention that by reason of the provisions of S.106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 1947. Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This Court in Shambhu Nath Mehra v. State of Ajmer, 1956 S.C.R. 199 after considering the earlier Privy Council decisions on the interpretation of S. 106 of the Evidence Act, observed at p. 204 (of SCR) thus : "The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." If S. 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal Jurisprudence must equally be invoked. If so, it follows that the onus to prove the case against the appellant is on the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.S. Government and the said shipment had been held by Customs. He further admitted in the said letter that shipment of special game cock necks (jungle cock necks) was managed by manipulation and that he would be ruined if the goods are returned to India. Similarly in his letter dated 31-3-1968 Sri Momin Baksh write to Mr. Peters of M/s Herters INC that as per their previous understanding false commercial invoice and US special customs invoice were sent through the bank and the correct ones direct to the said Mr. Peters. He suggested that the false document after receipt from the bank must be replaced. It is evident from the incriminating documents and correspondence the photostat copies of which have been sent by the U.S. Customs that Sri Momin Baksh made duplicate sets of invoices and packing lists one real and the other fake one for the purpose of effecting shipment from Calcutta." 12. The learned SDR, Sri M.N. Biswas contended that the documents though Photostat copies are admissible in evidence as the U.S. authorities have certified that their correctness. It was also his contention that it is not the case of the appellant that the customs authorities of India and USA hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that the guilt of the appellant cannot be established on the strength of some of the Xerox copy of the letters. But the learned S.D.R. Sri M.N. Biswas contended that there is no evidence to show that these bills were produced by the appellant before the adjudicating authority. It was also contended that there were several consignments sent by the appellants and only with some consignments the charges are to be built up. It was, therefore, contended that there is nothing to show that the charges were built up with consignments pertaining to these shipping bills. But in my opinion there is also nothing to show that the charges are built up with respect to consignments excluding these consignments, which were opened and examined. The benefit should go to the appellant in this regard. 13. It was contended by the learned Advocate that imported items must be considered by their technical sense and not by its trade or nomenclature and relied on the decision of the Supreme Court reported in 1990 (2) SCC 203. It was, therefore, contended that there would have been an expert opinion to show, that, what was exported by jungle cock necks. But Sri Biswas contended that questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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