9911796707
TMI Blog1999 (1) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... xi car with the 30 gold biscuits, the Circle Inspector of Police, Chalakudy apprehended the first petitioner at Potta junction, Chalakudy at about 3 a.m. on 22-10-1994 during the course of a routine search of vehicles and took into custody an air bag containing the aforesaid gold biscuits under a mahazar. Thereafter the police handed over the first petitioner and the gold to the Superintendent of Customs, Special Unit. Kodungalloor on the evening of 22-10-1994. The Customs authorities prepared Ext. P2 mahazar and seized the gold under Section 110 of the Customs Act. On 23-10-1994 Ext. P3 statement of the first petitioner was recorded under Section 108 of the Customs Act. The first petitioner was produced before the Addl. Chief Judicial Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why a penalty shall not be imposed under Section 112 of the Act. Ext. P8 show cause notice was followed by Ext. P11 order of adjudication passed by the third respondent Commissioner of Central Excise and Customs, Kochi absolutely confiscating the entire gold and imposing penalty of Rs. 5 lakhs. Exts. P12 and P13 are appeals preferred by the petitioners against Ext. P11. The second respondent Tribunal (CEGAT) passed Ext. P14 common judgment confirming the order of confiscation and reducing penalty to Rs. 4 lakhs from Rs. 5 lakhs. On being found that Ext. P14 contain factual mistakes and omissions going to the root of the matter, the first petitioner filed an application for rectification of mistake which was dismissed as per Ext. P15 order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department is not required to prove its case with mathematical precision to a demonstrable degree. Even so, we are of the opinion that the department is not relieved of its obligation to establish the guilt of the offender with such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. In other words, since it is exceedingly difficult, if not absolutely impossible for the department to prove facts which are especially within the knowledge of the offender, it is not obliged to prove them as part of its primary burden. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the department altogether of the burden of producing some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has not succeeded in discharging its initial burden of proving that the goods in question are smuggled goods either by direct evidence or by circumstantial evidence. In fact, there was no evidence at all in respect of the fact in issue. Ext. P3 statement given by the first petitioner cannot be treated as voluntary and true in many respects and not being a voluntary one, the first petitioner retracted from it at the earliest opportunity. In Ext. P4 bail application the first petitioner made it crystal clear that the gold in question belonged to the second petitioner who has paid duty for it as evidenced by Ext. P1. By Exts. P5, P6 and P7 also it was made known and clear to the department that the gold in question is duty paid vide Exts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd P4 and other documents, there was nothing before the respondents which would justify a confiscation proceedings. Before proceeding with the confiscation the third respondent is duty bound to enquire into and find out whether in the light of the case put forward by the petitioners in their reply to the show cause notice, there is ground for belief that the gold in question is smuggled. The fact that on 19-10-1994 the second petitioner imported 42 gold biscuits vide Ext. P1 and the claim of the petitioners that the gold in question forms part of the said imported gold is probable in all respects ought to have weighed with the authorities. Instead, what has been done is a mechanical exercise of statutory power based on no evidence resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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