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TMI Blog1999 (9) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise and Customs, Bangalore, under Section 111(d), penalty of Rs. 2,500/- under Section 112 of the Act. 3.The appeal under Section 129-A of the Customs Act to set aside the order dt. 29-7-82, was dismissed by the Central Excise and Customs Appellate Tribunal. South Range at Madras on 25-6-83 confirming in entirety the order of confiscation as well as the penalty imposed by the Collector of Central Excise and Customs. 4.It is submitted, Section 123 of Customs Act is applicable to the facts of this case. The statement recorded from the application Bahubali D. Kambhoj is admissible in evidence and the same is not hit by Section 24 of the Evidence Act. The acquittal given in Criminal case filed against the appellant on the ground that the seizure was not on the basis of a reasonable belief by the seizing officer and therefore Sec.123 is not applicable. Such finding rendered by the Criminal court is binding on the Tribunal. On the other hand, the senior Standing counsel for the Department submitted that the applicant is guilty of contravention of the provisions of the Customs Act, de hors Sec. 123 of the Act. The Criminal Court has not given a finding on merits with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following effect was also relied upon. " It is true to law that even in cases where Section 123(1) of the Customs Act is not attracted, the prosecution can discharge its burden by establishing circumstances from which a prudent man, acting prudently, and infer that in all probability the goods in question were smuggled goods, and the accused had the requisite guilty knowledge in respect thereof. The leading case is; Issardas Daulat Ram v. Union of India, 1962 Supp (1) SCR 358. In that case, in reaching the conclusion that the gold had been smuggled, the Collector of Customs considered the credibility of the story put forward by the appellant about the purchase of the gold and also the conduct of the appellant in trying to get the gold melted so as to reduce its fitness by mixing silver with it, in an attempt to approximate the resultant product to licit, gold found in the market. The ratio of this decision was followed by this court in Labhchand Dhanpat Singh Jain v. State of Maharashtra, AIR 1975 SC 182. The appellant accused therein was trying to enter the railway compartment at Bombay station. Seeing his nervousness, the Railway Police questioned him and searched his person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1898 Code. 7.The case in Bhoormal Premchand v. Collector of Customs, Madras, in AIR 1967 Madras 39, relied upon by the applicant to the following proposition does not apply to the facts of this case. "It is true that under Sec. 178A of the Sea Customs Act a statutory condition has been imposed upon the accused of establishing his innocence, namely, that the gold was not smuggled; in other words, the burden of proof on the accused is fixed. It cannot be altered nor does it shift during the course of the enquiry. But when once the accused has placed all the available materials before the Customs authorities and also when the Customs authorities are possessed of all the materials as a result of the investigation, after certain stage, the burden of proof imposed on the accused shifts on to the Customs authorities to prove that it was smuggled gold". 8.In Pooranmal v. Director of Inspection reported in AIR 1974 Supreme Court 348 the Supreme Court held that : "On the principles underlying Evidence Act burden to establish the fact is cast on the person concerned and if he fails to establish or explain those facts, an adverse inference may be drawn against presumptive evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The conduct of the accused, including his untruthful denial of their possession, indicated consciousness of their smuggled character or mens rea. In any case, there was some evidence, to enable the Courts to come to the conclusion that the goods must have been known to the accused to be smuggled even if he was not a party to a fraudulent evasion of duty." 11.In 1983 (13) E.L.T. 1546 (S.C.) = AIR 1974 SC 859 in case of Collector of Customs and Others v. D-Bhoormull, the Supreme Court As observed as follows: "....the prosecution of the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that requires is the establishment of such a degree of probability that a prud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the petitioner had discharged the burden, if any, which lay upon her, it is not understood why this explanation given by her could not have been accepted, especially when there is no other evidence coming forth from the side of the Department itself as to attract the punitive action under Section 111(d) of the Customs Act." 16.The respondent-Department also relied upon the following dicta for the proposition that reference becomes academic. In the case of Commissioner of Income-Tax, Bombay City-II, Bombay v. Ramchand Jethmal, it was held that : "as the finding recorded by the Tribunal that the amounts which were sought to be brought to tax by way of deemed dividends fell outside the Divali year ending on October 31, 1956, and that for purposes of deemed dividends a different accounting year could not be adopted had been accepted by the revenue, that finding could not be disturbed and, therefore, the questions referred as to whether the amounts were properly treated as deemed dividend under section." 17.In the case of Additional Commissioner of Income-Tax v. S. Krishnaswamy Reddiar reported in 1978 (Vol. 115) ITR 505, it was held : "(1) that, as found by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Ltd. reported in 1982 (Vol. 138) ITR 63, it was held that : "In the first order of the Tribunal there was not finding that an amount received on the forfeiture of an advance to purchase immovable property was of a revenue character. As a result of two subsequent miscellaneous petitions, the Tribunal categoricaly observed that it had not decided whether the receipt was assessable income. On a question regarding the year in which the receipt was assess: It was held that the question was academic and the High Court would not answer it." 21.In the case of State of Maharashtra v. Natwarlal Damodardas Soni reported in 1983 (13) E.L.T. 1620 (S.C.) = AIR 1980 Supreme Court 593, the Supreme Court, at paragraph 18 of the Judgment, has observed as follows : "It is trite law that even in cases where Section 123(1) of the Customs Act is not attracted, the prosecution can discharge its burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the goods in question were smuggled goods, and the accused had the requisite guilty knowledge in respect thereof. The leading case is Issardas Daulat Rom v. Union of India 1962 Supp(1) SCR 35 ..... 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