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TMI Blog1985 (3) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ched the premises of M/s. Gurbachans Radios, Dimapur on 29-9-83. As a result of search, 151 Nos. of vedio cassettes of foreign origin were recovered in presence of independent witnesses and wife of the proprietor and other employees of the shop. The appellant was not present at the time of search and his wife had stated that her husband had gone to Bombay on business trip. Therefore, she could not produce any papers in connection with the aforesaid cassettes. On some of the cassettes, there were markings as Made in Japan and on some Cassettes, there were also markings Made in India , but were found on close examination to be Made in Japan by removing the original labels as alleged by the revenue authorities. The appellant s statement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and had held that the seized items were smuggled into India in violation of the provisions of the Customs Act and other allied Acts. The learned Additional Collector had confiscated the seized cassettes under Section 111(d) of the Customs Act, 1962 and had also imposed a penalty of ₹ 500/- under Section 112 of the Customs Act, 1962. Being aggrieved from the aforesaid order, the appellant has come in appeal before this Court. 3. Shri J.N. Roy, the learned advocate has appeared on behalf of the appellant. He has reiterated the facts. He has pleaded that the seizure was effected on 29th September, 1983. He has pleaded that 151 cassettes of Indian films were confiscated and the list of the same was duly attached along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are smuggled goods or imported in contravention of the licences or the Rules. The Hon ble High Court held that Merely because a person is found in possession of an article of foreign origin, it cannot be presumed that he has imported the goods in contravention of the relevant provisions unless the presumption under Section 123 of the Customs Act will apply. Since Section 123(2) of the Customs Act, 1962 would apply only to gold diamonds, manufactures of gold or diamonds, watches and any other class of goods which are notified and not to video cassettes, therefore, no presumption can be drawn nor any reasonable belief can be formed that the video cassettes were smuggled goods and were imported in contravention of the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof was on the revenue to establish that the seized 151 cassettes are smuggled cassettes. Section 123 of the Customs Act, 1962 is reproduced as under : 123. Burden of proof in certain cases. - Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person ; (b) in any other case, on the person, if any, who claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as under : 12. Accordingly the presumption of the nature mentioned above can be raised only in respect of the goods to which Section 123 applies. According to sub-section (2) of Section 123, the section would apply to gold, diamonds, manufacture of gold or diamonds, watches and any other class of goods which the Central Government may by notification in Official Gazette specify. Video cassettes do not fall in the category of gold, diamonds, manufactures of gold or diamonds and watches. Learned Standing Counsel could not bring to our notice any notification by the Central Government which has made the provisions of Section 123 applicable in respect of video cassettes. The respondents therefore were clearly in error in thinking that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110 of the Act. 13. In this view of the matter, we are of opinion that there was material on the basis of which the respondents could reasonably believe that the 115 video cassettes found in petitioner s business premises had been imported in contravention of the provisions of the Import Control Order issued under the Import and Export Control Act, 1947 and were liable to confiscation. Seizure of the video cassettes effected by the respondents therefore, is without jurisdiction. The facts of the present appeal are similar to the facts of the aforementioned case and there is no reason as to why the appellant should be denied the benefit of the Allahabad High Court judgment. The revenue has not been able to cite any judgment in its fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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