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TMI Blog1983 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... d verification, he sealed all the aforementioned articles and after handing them over to Ashok Kumar instructed him not to, as provided by the Customs Act, 1962 (hereinafter referred to as the Act), either part, remove, transfer or otherwise deal with them till further orders. This instruction was contained in the form of a letter dated 6th September, 1983 (Annexure 12 to the writ petition) addressed to M/s. Sun Video House, 16/86, Mall Road, Kanpur. 2. The two petitioners then questioned the validity of the seizure of the video cassettes, V.C.R. and telephone by means of the present writ petition under Article 226 of the Constitution which they filed on 9th September, 1983. According to the petitioner, they had fully accounted for all the seized articles and that there was absolutely no relevant material on the basis of which respondent No. 2 could possibly entertain the belief that the articles seized by him had been improperly imported. The petitioners, therefore, prayed that the order contained in the communication dated 6th September, 1983 (Annexure 12 to the Writ Petition) be quashed and the respondents be directed to remove their seal and thereafter not to interfere with p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssettes. Video cassettes of foreign origin are restricted item as indicated at serial number 19 of Item No. 561 of Electronic items. They were dutiable goods and could be imported in India only in accordance with the provisions of the Act after payment of proper customs duty. The petitioners did not produce any evidence to indicate that the seized recorded film cassettes had been imported into India in accordance with the provisions of the Act. 5. According to the respondents the discrepancy between the cassettes of foreign origin found in possession of the petitioners and the receipts on the basis of which the petitioners wanted to explain their being in possession thereof, provided sufficient ground for custom authorities to feel satisfied that in law they were not permissible cassettes. So far as the telephone set was concerned, the case of the respondents is that it was petitioner's own case before them that petitioner No. 1 had brought it as his personal baggage under the Tourist Baggage Rules, 1978, when he returned to India after visiting foreign countries in 1982; but then at the time of search the petitioners did not produce any documentary evidence in support of their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as they did not come under definition of 'actual users'. On petitioners' own showing the video cassettes were used by them for maintaining the library and that they used to charge a sum of Rs. 10/- from the member of the library for using the same. Accordingly, the petitioners were doing business from the said cassettes which was against the provisions of the policy inasmuch as the petitioners, were neither legal importers nor actual users of these cassettes since at the time of search the petitioners were neither 'actual users' nor importer, and they had purchased the said cassettes knowing that their sale and purchase was illegal, the customs authorities were justified in concluding that the video cassettes found in their possession were smuggled goods liable for confiscation. 8. In the rejoinder and the supplementary rejoinder affidavits filed by the petitioners on 4th October, 1983 they tried to explain the discrepancy in respect of the video cassettes and receipts with which they wanted to connect them. The petitioners also demonstrated before us as to how the stickers placed on various video cassettes are not very material for forming an opinion about their actual make. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sound recorders and reproducers, magnetic. 92.12. Gramophones records and other sound or similar recordings, matrices for the production of records, prepared record blanks, film for mechanical sound recording, prepared tapes, wires, strips and like articles of a kind commonly used for sound or similar recording." and as such video cassettes cannot be imported in India without obtaining a licence and without payment of duty contemplated by Customs Tariff Act, 1975 (Import Tariff). The respondents then proceed to take the following stand in paragraph 11 of the second supplementary counter-affidavit. "That in view of the aforesaid provisions of the Act and the order the answering respondent has to examine whether the goods in question have been imported in India in accordance with the provisions of the Customs Act, 1962, along with Import and Export (Control) Act, 1955 or not, or whether the petitioner or some other agency have imported these goods under the valid licence. Admittedly, the goods have been recovered from the petitioners as such the burden lies on the petitioner to satisfy the adjudicating authority that whether he fulfills the conditions laid down in the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt under and in accordance with the licence or customs clearance permit granted by the Central Government or by any offer specified in Schedule II." It was thus be seen that Imports (Control) Order, 1955 merely provides that goods mentioned in Schedule I of the order shall not be imported except under and in accordance with a licence or a custom clearance permit granted by the Central Government or any other officer authorised by Schedule II for that purpose. It does not place any restriction on the import of articles which are not specified in Schedule I to the order. According to the respondents, the video cassettes recovered from the petitioners fell under items Nos. 92.11 and 92.12 of Schedule I. It may be that video cassettes recovered from the possession of the petitioners may be covered by the item television image and sound recorders contained in entry No. 92.11 or by the item prepared tapes, wires, strips and like article of kind commonly used for sound or similar recording mentioned in entry 92.12 or Schedule I and, therefore, it may not be possible to import the same in this country except under and in accordance with the licence issued by the Central Government or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 burden of proving that the cassette seized from petitioners business premises were not smuggled lay on the petitioners and in entertaining a belief that they were smuggled goods merely because the petitioners had failed to discharge such a burden. Learned counsel for the respondents also could not place any material before us to show that legally it was not possible for any one to obtain licence for importing video cassettes for purposes other than for use by actual users. Reference to Import Policy, formulated and published by Government of India, for the years 1983-1984, made by the respondents does not appear to be conclusive in this regard. In the result, we find that there neither is any positive material before the respondents nor is the presumption under section 123 available to them for entertaining the belief that the video cassettes found in possession of the petitioners are smuggled goods, l ..... 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