Samsuddin Sheikh vs Collector Of Customs (Prev.) on 11 September, 1989
This decision is followed by the Tribunal (NRB) in another decision in the case of Collector of Customs & Central Excise, Chandigarh v. Shri Balkrishan reported in 1987 (29) ELT 65 (Tribunal). From the abovesaid decision it is clear that the admission of the appellant that the seized goods are purchased by him from the passengers going abroad by itself is not sufficient to hold that they are smuggled goods and they are imported without payment of duty or in violation of restrictions for prohibition regarding entry of these goods into India. It was held in that decision that there was no evidence that the passengers who had sold the goods had not paid the duty. That burden was on the department and it has not discharged this burden. It was also held that even if the goods are of foreign origin that itself is not sufficient to order confiscation in the absence of clear evidence that they were smuggled goods. In the present case the appellant has averred in the statement that he had purchased the garments from Rustam and when the department searched the residence of Rustam, only some documents pertaining to his garment business were found and there was nothing to show that this Rustam Biswas had imported these goods without payment of duty. On the contrary, the learned Board found that Rustam Biswas is not liable to be proceeded and he was exonerated. Therefore, when the source of the appellant's getting the goods in question is Rustam and when Rustam is exonerated by the Board of the charges against him, it is highly contradictory to hold the appellant guilty of such offence. The fact of exonerating Rustam goes to show that he has given benefit with respect to these goods that they were not smuggled. If the statement of the appellant is to be relied upon it should be relied upon as a whole and if his admission regarding purchase of the goods from Rustam is taken into account, and when Rustam is exonerated, the appellant also is to be exonerated of the charges.