Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Shri R. Ramalingam, Shri Chinnappan, ... on 1 March, 2005
ORDER Moheb Ali M., Member (T)
1. These stay applications are filed by the Revenue against the order of Commissioner (Appeals), Customs, Mumbai. In the impugned order the Commissioner set aside five orders of the lower authority. The lower authority confiscated imported goods found in the possession of five passengers who arrived from Chennai to Mumbai under Section 111(d) of the Customs Act and imposed penalties under Section 112(a) and (b) of the same Act.
2. Briefly the facts in all the stay applications are that five passengers were intercepted while they got down from a local train at Ghatkopar. They arrived from Chennai. They were found in possession of goods with foreign markings allegedly brought into the country without payment of duty. The goods consisted of Mobile phones, Still Cameras, Video Recorder etc. When asked to explain as to how they came to possess the goods the passengers through their advocate filed baggage receipts evidencing payment of customs duty on arrival. They also claimed that they purchased duty paid goods from the various international passengers who cleared the goods on payment of duty. Verification of the details of goods shown in the baggage receipts with the seized goods revealed that they do not tally. The original authority therefore held that the initial burden thrown on the persons from whose possession the goods were seized had not been discharged. He relied on the decision of the Hon'ble Supreme Court in D. Bhoormul's case wherein the Supreme Court held that a Custom Officer, is entitled to ask the person from whose possession goods of foreign origin is seized on a reasonable belief that they are smuggled, to discharge the presumption raised against the goods. The goods involved in the present case are not notified. The lower appellate authority held that in the case of non-notified goods the burden to prove that goods are smuggled is cast on the Department. He relied on the case law on the subject and set aside the orders of the lower authority.
3. Heard both sides.
4. The Revenue relies on the decision of the Tribunal's Order No. A/1196-1997/WZB/2004/CI dated 14/06/2004 wherein the Tribunal relying on a Supreme Court decision held that if the story given by the person from whose possession the goods are seized on a reasonable belief that they are smuggled, is proved false the burden cast on the Department shifts to the person. In the present case the story that the goods were duty paid under a particular baggage receipt was proved to be false. It is pleaded that the persons from whose possession the goods are seized have no fixed address and if the order of the Commissioner (Appeals) is not stayed the goods will have to be released to the persons, in which case there is a danger that the Department will not be able to trace them if it succeeds in appeal. It is also pleaded that the original authority supported his finding with relevant case law.
5. The Ld. Advocate for the respondents relying on the case law supported the Commissioner (Appeal)'s findings.
6. We observe that the goods in question are not: notified and so the burden to establish that they are smuggled is on the Department. However the onus of proof shifts from one to another during the course of investigation. It is not necessary for the Department to establish its case to the hilt. The story of the Respondents that the goods were duty paid under some baggage receipts proved to be false. The Department can draw its conclusion from such false averments as observed by the Supreme Court in Karungo & Co's case. At this prima facie stage, it is difficult to come to a definite conclusion that the baggage receipts produced by the respondents covered the impugned goods. In view of the fact that the Respondents have no fixed addresses, balance of convenience lies in staying the operation of the Commissioner's order.
7. We according stay the operation of the order of the Commissioner during the pendency of these appeals. Orders accordingly.
(Operative part pronounced in the Court)