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TMI Blog2002 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... rshan Lal, could not produce any document, other than the GRs and invoices for the lawful import/acquisition/possession of those ball bearings and as such the same were seized under Section 110 of the Customs Act on a reasonable belief that the same had been acquired/possessed/kept in custody illegally and were liable to be confiscated under the Act. Shri Darshan Lal in his voluntary statement dated 13-11-1999 tendered under Section 108 of the Customs Act, 1962 admitted the recovery of the ball bearings of foreign origin from the transport, godown of the appellants' firm. He, however, further stated that the consignments were booked on a to-pay basis and were to be sent to various traders along with the invoices. He also produced GRs and invoices to show his ignorance about the owners of the consignments. Similarly, Shri Sunil Bradu, Managing Partner of the appellants' firm, also stated that he was looking after the overall administration and supervision of the Delhi Office and that they booked the goods on to-pay basis and transportation charges were collected at the point of delivery. He also showed his ignorance about the parties who booked the impugned goods and further disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, New Delhi, 2001 (127) E.L.T 288 (T); (v) Shri Dinesh Ishwar Lal Patel v. CC, Bombay, 1988 (34) E.L.T. 382 (T); and (vi) Shri Rahat Hussain v. CC (P), West Bengal, 2002 (139) E.L.T. 727 (T). 4. On the other hand, the learned SDR has reiterated the correctness of the impugned order of the Commissioner and contended that the facts and circumstances brought on record are sufficient to prove the knowledge of the appellants about the smuggled character of the impugned goods. The confiscation of the goods has been made as the goods carried foreign mark and neither appellants nor the alleged consignors/consignees of the goods had come forward to claim the same on the strength of any valid/legal document regarding their acquisition. 5. We have heard both sides and gone through the facts on record. 6. So far as recovery of the impugned goods i.e. 58256 pcs. of ball bearings with foreign make and brand valued at Rs. 1,50,11,900/- from their office-cum-godown on conducting search by the officers of the Customs Preventive Branch on 13-11-1999 is concerned, the same has not been disputed by the appellants. They have not claimed these goods as owner or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the department to prove that the appellants had knowledge or reason to believe that the goods in their possession were liable to be confiscated under Section 111(d) of the Act. But to discharge this burden, it was not incumbent on the department to produce only direct evidence. In fact, no direct evidence in that regard could be produced by them. This burden could be discharged by them by bringing on record the facts and circumstances of a determinative character leading to the conclusion that the appellants had full knowledge of the smuggled character of the impugned goods recovered from their possession. 9. Besides this, Section 106 of the Evidence Act enacts exception to the general rule that the burden of proof is on a party who substantially asserts the affirmative of an issue. It is a general rule of evidence that burden of proof lies on the person who wishes to support his case by a particular fact which lies more peculiarly within his own knowledge or of which he is supposed to be cognizant. The rule is of very general application, it holds good whether the proof of issue involves the proof of affirmative or of a negative and has even been allowed to prevail agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er document to establish that they acquired the goods in a lawful manner had been produced by them. Therefore, keeping in view the basic principle underlying Sections 106 and 114 of the Evidence Act and the ratio of the law laid down by the Apex Court in the above referred cases, coupled with the tell-tale circumstances, narrated above, the dubious conduct of the appellants, the irresistible presumption to be drawn is that they had full knowledge of the smuggled character of the goods. The goods recovered from their possession were not of small quantity. Those were 58256 pcs. of ball bearing valued at Rs. 1,50,11,900/- in the market. Therefore, they had been rightly proceeded against and penalised under Section 112(b) of the Act. 11. No exception to the confiscation of the goods under Section 111(d) of the Act can also be taken by the appellants for having not claimed the same. The ratio of the law laid down in the cases relied upon by the Counsel, detailed in Para 3, is not at all attracted to the instant case of the appellants. In those cases, there was no evidence to prove the knowledge of the appellants about the smuggled character of the goods and by applying the gener ..... X X X X Extracts X X X X X X X X Extracts X X X X
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