Bombay High Court
Santosh Gupta vs Union Of India on 1 January, 1800
Equivalent citations: 1991ECR380(BOMBAY), 1990(48)ELT210(BOM)
JUDGMENT
1. Pursuant to the notice dated 24th April 1976 issued by the Assistant Collector of Customs, Central Intelligence Unit of Bombay, proceedings were held under Section 111(d) of the Customs Act, 1962, in which the petitioner and her husband were called upon to show cause why certain goods which were attached from their house should not be confiscated under the above mentioned provision. The Assistant Collector of Customs, who was the authority of first instance, by his judgment and order dated 19th October 1977 ordered the confiscation of, among other things, two zoom lenses under Section 111(d) of the Customs Act. Similarly he also ordered the confiscation of 12 rolls of gilleting filters under the same provision of law. The Assistant Collector also imposed a personal penalty of Rs. 10,000/- on the petitioner's husband and penalty of equal amount on the petitioner under section 112 of the Customs Act. This was naturally without prejudice to any other action that could be taken under the Customs Act. This order was appealed against by both the petitioner and her husband. The Central Board of Excise and Customs by its order dated 28th September 1979 modified the order of the first authority by setting aside the order against the petitioner's husband. Even in the case of the petitioner, the order of confiscation was confined to only two zoom lenses and 12 rolls of gilleting filters whereas in the trial Court, some more goods were also ordered to be confiscated. The penalty imposed upon the petitioner was reduced to Rs. 1000/-
2. The petitioner preferred a revision application to the Government of India and the Government by its order dated 10th October 1979 confirmed the order of the appellate authority. This last order is the subject- matter of challenge in this petition under Article 226 of the Constitution.
3. With the assistance of Mr. Mehta, the learned Advocate appearing is support of the petition, and Mr. Rege, the learned Advocate appearing for the respondent I have gone through the judgments of the three authorities below and also certain parts of the material evidence which has been brought to my notice. Normally this Court exercising is jurisdiction under Article 226 of the Constitution would be loath to interfere with what could be regarded as a finding of fact recorded by the final Court of facts and confirmed by the revisional authority. However, on going through the material on record on the facts and circumstances of this case case it is seen that there is an error of law in the judgment of the authorities below in as much as they proceeded on the basis that the burden of proving that she was not guilty of the misdemeanour with which she was charged was on the petitioner. The proceedings under the Customs Act, even the departmental proceedings, are in the nature of penal proceeding and, therefore, the burden of proving its case is always upon the Department except where Section 123 of the Customs Act is attracted. The three authorities below in this case have held that the goods in question are not covered by the provisions of section 123 of the Customs Act. Therefore, one must proceed on the basis as to whether the Department has discharged the burden which rests upon it before calling upon the petitioner to disprove the Department's case.
4. In so far as the zoom lenses are concerned, the petitioner has produced two receipts under which she has purchased the same for consideration. The person who passed the receipts unfortunately was not traceable, but the owner of the Asha Studios on whose behalf the receipts were passed has been examined. He has stated that he has not issued the receipts, but the material on record shows that he had signed two receipts at the instance of one film producer, Mr. Talwar by name, but did not know for what purpose the said receipts had been passed. It is not the case of the Department that the receipts are totally bogus. On a preponderance of probabilities, therefore, the petitioner has discharged the burden, if any, which lay upon her. I do not see 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. The benefit of doubt which in fact was given by the appellate authority in respect of certain other goods for which probably the Department had a stronger case ought to have been given to the petitioner in the instant case also. There is no reason adduced by the authorities below as to why this was not done. The revisional authority has not considered the case regarding the zoom lenses at all.
5. The case of the petitioner in respect of gilleting filters is in fact on a stronger ground. She has given an explanation that from time she brought them as a part of her personal baggage and in support of his case, she had told the authorities in the earliest statement recorded by them that the said goods which had been already taken in custody by the authorities bore chalk mark which was an indication that they were allowed to be cleared by the customs authorities. The petitioner also relied upon a public notice bearing No. 13 ITC(PN)/71 dated 1st February 1971 which dealt with the import of goods as personal baggage under the Baggage Rules. The decision of the Government has been mentioned in this notice and that is that a passenger normally resident in India and returning from abroad from any country other than Ceylon, Pakistan or Nepal after a stay for a period of less than three months abroad may be allowed to import duty free and without I. T. C. formalities articles up to a value of Rs. 500/-.
6. The case of the petitioner that she brought the gilleting filters from time to time as a part of her personal baggage has not been disbelieved by the authorities below. But her own statement that she brought them without paying the import duty has been relied upon for holding against her. If she has stated that she had brought them from time to time as a part of her personal baggage under the public notice No. 13 referred to above, there is no reason why the authorities below insisted that she should have paid the import duty, especially when the notice itself says that such goods could be brought without I. T. C. formalities if the articles are up to a value of Rs. 500/-. It has not been found by the authorities below that the articles which the petitioner brought at a time were of the value of more than Rs. 500/-.
7. In my opinion, the authorities below have proceeded practically on the basis that the entire burden of proving that they are not goods covered by Section 111(d) of the Customs Act is on the petitioner and this approach is erroneous in proceedings are held.
8. It may also be added that the petitioner was prosecuted in criminal Court, namely, in the Court of the Chief Metropolitan Magistrate in Case No. 35/CW of 1978. Charge under Section 135(1)(a) was framed against the petitioner and her husband. The learned Chief Metropolitan Magistrate by his judgment and order dated 28 the September 1978 acquitted both of them. It is true that in the said proceedings the Department relied practically only on Section 123 of the Customs Act. As I have already held above, the provisions if Section 123 have been found to be inapplicable to the goods which were seized from the petitioner's house. The appeal against the order of acquittal preferred by the State has been summarily dismissed by this Court.
9. Considering all these facts and circumstances of this case, I am of the opinion that the orders passed by the authorities below deserve to be set aside.
10. In the result, this petition is allowed. The orders of all the three authorities below are set aside and the proceeding, held against the petitioner are quashed. The amounts which have been paid by the petitioner under the orders which are now set aside shall be refunded to her.
11. No order as to costs in this petition.