Customs, Excise and Gold Tribunal - Delhi
Bon-Ton Sight Care vs Collector Of Customs on 8 April, 1992
Equivalent citations: 1993(64)ELT239(TRI-DEL)
ORDER N.K. Bajpai, Member (T)
1. This is an appeal against the order of confiscation of 274 pieces of spectacle frames valued at Rs. 1,16,350/- under Section 111(b) of the Customs Act, 1962 with an option to clear them on payment of a fine of Rs. 60,000/- in lieu. the brief facts as relevant for the consideration of the appeal are that the appellants are engaged in the retail sale of spectacle frames and lenses. They have been purchasing these articles from different sources on regular vouchers. During a search of their shop on 8-5-1990, 667 spectacle frames of a market price of Rs. 2,77,850/- were seized by the Customs authorities on the ground that the appellants did not produce any evidence, documentary or otherwise, of lawful import/acquisition/possession storage/sale/purchase of these goods of foreign origin. during investigation, the appellants produced numerous bills of a number of parties showing purchase of spectacle frames from them and as many as 12 such bills covering 393 pieces spectacle frames were found to be genuine and these spectacle frames were ordered to be released by the Additional Collector of Customs in the same order in which he has ordered confiscation of 274 pieces spectacle frames on the ground that the bills produced for the latter "are not found to be genuine". The following order has been passed in respect of these goods :-
"As regards the bills submitted in respect of the remaining 274 pcs. of spectacle frames, the details of the goods given on the bills have not been found tallying with the seized goods. If the genuine and correct bills had been produced by the party, the same could have been accepted as was done in the case of 393 spectacle frames. The notice, Shri Sanjeev Madan has been accorded an opportunity to inspect the seized goods on 4-6-1990 to collect the required information and to submit the correct bills. The bills produced for 274 pcs. of spectacle frames are not found to be genuine. Although the goods under seizure are not notified under Chapter IV-A and do not attract the provisions of Section 123 of the Customs Act, 1962, yet the party/notice should have proved lawful possession of the subject goods. On the basis of any bills, the lawful possession in respect of 274 pcs. of spectacle frames is not proved. ...Mere production of any bill does not prove the lawful possession of the goods. The party did not dispute the foreign origin of the goods of which the lawful possession is required to be established by the party. Unaccounted goods and non-established legal possession of the goods render them liable to confiscation. "
2. Arguing for the appellants, Shri L.P. Asthana, the learned Counsel submitted that the fact is that the bills submitted by the appellants did not tally with the particulars of 274 pcs. spectacle frames, but it does not mean that the bills were not genuine. Moreover, in the absence of any such allegation in the show cause notice, it was not permissible for the adjudicating authority to draw the conclusion that the bills were not genuine. In fact, the same adjudicating authority had found that in the case of as many as 12 suppliers of spectacle frames to the appellants, the bills produced had been accepted because the particulars tallied.
3. Shri Asthana also stated that the provisions of Section 123 of the Customs Act, 1962 relating to burden of proof did not apply to spectacle frames; nor were these goods notified under Chapter IV-A. In fact, the import of spectacle frames was permissible under Serial No. 692 of Appendix-3 of the Import Policy for the period 1990-93. In these circumstances, even if the particulars of the goods did not tally with those given in the bills produced by the appellants, the goods did not become liable to confiscation. He submitted that there was a catena of judgments on this question and it was a well-settled position of law that burden of proof for such goods lay on the Customs authorities and, merely because some one was in possession of foreign goods, the acquisition of which could not be satisfactorily explained, did not mean that the burden of proof could be shifted from the Customs Authorities to the person holding such goods. He submitted that in the well-known case of Amba Lal v. Union of India and Ors. [1983 (13) E.L.T. 1321 (SC)] a full Bench of the Supreme Court had laid down the law that even Section 106 of the Evidence Act does not shift the burden of proof from the Customs authorities to the person from whom foreign goods are seized. He also referred to other decisions of the Tribunal in which different aspects of the same principle had been discussed and cited the case of Collector of Customs, Central Excise, Chandigarh v. Balkrishnan [1987 (29) E.L.T. 65], Yusuf Noor Mohammed v. Collector of Customs (Preventive) [1991 (51) E.L.T. 565], S.N. Sarkar& Abdul Latif v. Collector of Central Excise, New Delhi [1985 (22) E.L.T. 186], Tarlochane Singh Surie v. Collector of Customs & Central Excise, Shillong [1985 (21) E.L.T. 521], and Arvinder Singh Kocher v. Collector of Customs, Bombay [1986 (26) E.L.T. 792]. He also referred to the decision of the Allahabad High Court in the case of Ashok Kumar and Anr. v. Collector of Central Excise & Customs, Kanpur and Anr. [1984 (15) E.L.T. 400].
4. Referring to the decision of the Supreme Court in Amba Lal's case, Shri Asthana submitted that in the case of Kanungo & Co. v. Collector of Customs, Calcutta and Ors. [1983 (13) E.L.T. 1486 (S.C.)], the Supreme Court had indicated the circumstances when the burden of proof shifts from the Customs authorities to the offender. This he submitted, could happen only when there is a primafacie case against the party who had given a false explanation. Such was not the case so far as the present appellant is concerned. The bills that he had submitted were found to be not genuine; only the particulars did not tally. Hence the ratio of Kanungo & Co's case was not applicable to the present appeal. Moreover, the bills of entry against which some of the spectacle frames supplied to them were imported give the description "metal spectacle frames (assorted)" and it may not have been possible to tally the particulars fully. Since the burden of proof was not on the appellants in this case, it could not be said that the circumstance of the particulars not tallying would lead to the conclusion that either the bills were not genuine or that the appellant's version was false.
5. Shri Ashok Mehta, learned SDR submitted that he could only reiterate the grounds on which the adjudicating authority had ordered confiscation of the goods.
6. We have carefully considered the appeal, the rival submissions and have perused the case records. The position is well-settled in law that in respect of goods which are not notified under Section 123 or to which the provisions of Chapter IV-A of the Customs Act are not applicable, the burden of proof that they are not smuggled is on the Customs Authorities. The appellant, in this case had produced bills in respect of purchase of spectacle frames, and for as many as 393 pcs., the Additional Collector has accepted those bills as genuine. If particulars did not tally in respect of the others, it did not mean that such goods became liable to confiscation or that it was for the appellant to prove their lawful possession. Thus following the well-settled position in law as cited in the cases referred to by Shri Asthana before us, we set aside the order of confiscation and allow the appeal.