Customs, Excise and Gold Tribunal - Mumbai
Arvinder Singh Kocher vs Collector Of Customs on 13 December, 1985
Equivalent citations: 1986(8)ECR669(TRI.-MUMBAI), 1986(26)ELT792(TRI-MUMBAI)
ORDER K. Gopal Hegde, Member (J)
1. This appeal is directed against the Order bearing No. VIII(b)-10/29/Cus/80/32334 dt. 9.11.1982 passed by the Additional Collector of Customs (P) Bombay.
2. As the appellant had challenged the confiscation of 24 T-shirts and 29 half shirts and the levy of penalty of Rs.250/- and had not challenged the confiscation of other goods, it would not be necessary to set out in detail the facts of the case.
On 26.3.1980 on information that goods of foreign origin are being sold in Flat No. l2-B of Sun & Sea Co-op Housing Society, the officers of the Customs proceeded to that flat and they found a person by name Omkar L. Verma coming down the staircase of that building. On information that he had purchased certain materials of foreign. origin from the flat in question the officers went and knocked at the door of that flat, but none opened it. Thereafter, the assistance of the police was sought. On arrival of the police the present appellant opened the door. The search was carried out. During the search 29 half shirts and 24 full T-shirts were recovered from a bathroom. The officers also recovered certain wrist watches which were thrown outside from the flat in question. After investigation and after issue of showcause notice and after affording personal hearing, the Additional Collector of Customs who held an enquiry ordered confiscation of half shirts and T-shirts and also wrist watches, but however, gave benefit of doubt in respect of a telephone and a calculator. He also imposed a personal penalty of Rs. 250/- on the appellant.
3. During the hearing of this appeal Shri Saptarshi Advocate appearing for the appellant contended that the appellant does not claim ownership of the wrist watches. He urged that the statement of the appellant reon-ded on 27-3-1980 was not voluntary. The appellant was prosecuted before the Additional Chief Metropolitan Magistrate and was acquitted by the learned Magistrate. The T-shirts and half shirts are not of foreign origin, and therefore, the Customs have no jurisdiction either to seize or to order confiscation. He, therefore, prayed that the order of confiscation of T-shirts and half shirts may. be set aside and the personal penalty imposed on the appellant may also be set aside.
4. Shri Senthivel appearing for the respondent Collector however submitted that the search itself was on information. Further a purchaser in his statement had stated that he had purchased the goods of foreign origin from the appellant and he was also found in possession of the goods of foreign origin. Shri Senthivel also submitted that in his statement the appellant had categorically stated that the seized goods as well as the goods sold to Verma were purchased by him from the passengers coming from abroad. This statement had not been retracted. The complaint of the appellant that it was not voluntary cannot be accepted. The panchanama describes the goods as of foreign origin. Shri Senthivel further urged that besides the confiscation of T-shirts and half shirts, there was confiscation of the wrist watches and the allegation in the show cause notice was that the wrist watches were thrown out by the appellant and that the appellant had not challenged the order of confiscation of wrist watches. In the said circumstances no exception can be taken to the personal penalty imposed on the appellant.
5. I have carefully considered the submissions made on both sides. Admittedly, the T-shirts and the half shirts were not the notified goods at the relevant time. Therefore, the provisions of Chapter IV-A are not attracted. They were also not notified under Section 123 of the Customs Act. Therefore, there was no burden on the appellant to establish that the T-shirts and half shirts were licitly imported into India. The initial burden that T-shirts and half shirts were smuggled goods lies on the department. The department had not led any evidence to discharge that burden. The department however relied upon the admission of the appellant and two other circumstances, namely, recovery of goods of foreign origin from a purchaser from the appellant and the conduct of the appellant in not opening the door and wetting the T-shirts and half shirts which he got done before the police were called. The admission of the appellant was that the seized goods were purchased by him from the passengers coming from abroad. This admission by itself does not establish that the goods were smuggled into India. The goods can be said to be smuggled into India when they are imported without payment of duty or in violation of restrictions or prohibition regarding the entry of those goods into India. There was no evidence that the passengers who had sold the goods to the appellant had not paid the duty. The burden was on the department and the department had not discharged this burden. Even if we assume that the goods are of foreign origin that, by itself would not be sufficient to order confiscation in the absence of clear evidence that they were smuggled goods. The circumstances and the other evidence relied on by the department could only give rise to suspicion. Suspicion however strong is not substitute for proof.
6. In the above view of the matter the order, of confiscation of the T-shirts and half shirts is liable to be set aside and the same is set aside. They shall be released to the appellant.
7. As regards the penalty besides confiscation of T-shirts and half shirts the Additional Collector had ordered confiscation of the wrist watches and that part of the order of the Additional Collector had not been challenged. The allegation was that the watches were of foreign origin and they were thrown out by the appellant from the flat which he was occupying. Therefore, the Additional Collector could have imposed a personal penalty on the appellant in respect of appellant's acts in relation to the watches which were notified goods. Therefore, I see no reason to interfere with that part of the order.
8. In the result this appeal is allowed in part. The order of confiscation of the T-shirts and half shirts is set aside. In other respects the order of the Additional Collector is confirmed. T-shirts and the half shirts shall be returned to the appellant.