TMI Blog1987 (6) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ed requiring the appellant to show cause why the goods under seizure valued at Rs. 1,35,435/- be not confiscated under Section 111 of the Customs Act, 1962 for contravention of Section 3(1) of Imports/Exports (Control) Act, 1947 read with Section 11 of the Customs Act, 1962 and Section 11C, 11D, 11E and 11F ibid and why penalty should not be imposed upon him under Section 112 ibid being the person concerned in carrying, keeping, selling or purchasing as in other manner dealing with the goods which he knew and has reasons to believe are liable to confiscate under the said Customs Act, 1962. In reply to the said show cause notice the appellant sent a reply. Extracts from the same is reproduced below :- (i) That they have not committed any offence as alleged in the S.C.N. not have contravened the provisions of the Customs Act, 1962 or other allied laws as involved therein, the question, therefore, of confiscation of the seized goods or imposing any penalty on them u/s 112 of the Customs Act, 1962 does not arise. (ii) That the seizure is bad in law and against the provisions of Section 110 of the Customs Act, 1962 inasmuch as it was made by the officers of Customs without entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nics 1415, 3rd Floor, Bhagirath Palace, Delhi could not be contacted at the given address is misleading inasmuch as the party is functioning at the same address. Moreover the goods covered by this bill are of Indian origin and no offence of any kind has been committed. One Sanyo ultra compact cassette-cum-stereo appearing at Serial No. 6 is the property of Shri Ashwani Kumar Mahajan s/o Shri Hans Raj Mahajan resident of Adda Bastian Jallandhar which had come to them for installation purposes. Shri Mahajan had imported the same from abroad. He had also filed an affidavit before the local Central Excise Officers claiming the ownership of this item, a copy of which is enclosed. Annexure B One video cassette recorder National NV-370 made in Japan belonged to Shri Jagjit Singh, H.L.A. which had come to them for repair. He lodged a claim with the officers and on verification of the same it has since been released to him by the Asstt. Collector, Jalandhar. Annexures C D All the goods mentioned in Annexures C D were properly accounted for in the statement recorded by the seizing officer and the bills of purchase in respect of items appearing at S. No. 1 to 8 of Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the smuggled nature of the goods is a condition precedent for the applications of this section. The fact that most of the goods are of Indian origin and further the fact that goods have been seized on suspicion goes to show that there was no belief far less a reasonable as required by the section. The burden of proof is, therefore, as the department to first prove foreign origin of the goods. Once this is established, they have to prove further that these have been illicitly imported into India. You will appreciate that the department has failed to advance even an iota of evidence to prove the smuggled nature of these goods. It may be submitted that in the absence of any evidence, corroborative or otherwise, the goods under seizure are outside the purview of confiscation. Further, video cassettes have not been specified under Section 123 of the Customs Act, 1962. As such, the burden of proof that these had been illicitly imported into India lies with the department. There is no evidence, direct, cogent or otherwise, to prove that the video cassettes were illicitly imported into India. These are therefore, liable to be released. (v) That as regards filing of declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated the submissions already made in their reply dated 3-9-1985 and further submitted that the examination for the goods conducted revealed that the goods claimed by them to be of Indian origin were found with the stickers made in India or there was sign of removal of the stickers. For the goods of foreign origin they had already adduced satisfactory evidence showing illicit (licit?) import of these goods. In the interest of justice they requested that the goods be examined by the Addl. Collector himself which would satisfy his owner about the origin of the goods. It was further stated that the video cassettes mentioned in Annexure E to the show cause notice are of Indian brand names, and during the course of examination some of the cassettes were found to bear stickers Made in India and others were found to have impression of the stickers having been removed. All these goods are of Indian origin and no offence of any kind has been committed by them. They requested that the seized goods be restored to them at the earliest. The learned Addl. Collector after considering the reply of the appellant, had passed the order and operative part of the order is reproduced below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker system 14 W - Stereo RXF-6F and S.No. 4 : Unisef Stereo and S.No. 7 Sanyo 2X1 Model 1760+A1 (Mini and Slim) and as to item at S. Nos. 4, 5, 6, 8, 9 10 of Annexure A to the panchnama. He agrees that the same were lawfully acquired by the appellant but in the operative part of the order he only released item at S. Nos. 9 and 10 of Annexure A and items at S.Nos. 4, 5, 6, 8 of Annexure A confiscates but gives an option to redeem the same and ordered absolute confiscation of items at S. Nos. 1, 2, 3 and 7 of Annexure A . 108 cassettes at S. No. 1 out of 111 cassettes of Annexure C of the panchnama were released. Shri Chandrasekharan has referred to other items confiscated by the Addl. Collector which have been mentioned at page 15 and the operative part of the order states that there are discrepancies. Shri Chandrasekharan states that the whole case has been based on wrong notion. The emphasis has been wrongly placed on onus. The onus is on the Revenue and not on the appellant because notifications were issued under Section 11C of the Customs Act, 1962 (Chapter IV) and there are no corresponding notifications or amendment of law under Section 123 of the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is made from the possession of any person - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches and any other class of goods which the Central Government may by notification in the Official Gazette specify. Notification No. 204/84-Cus., dated 20-7-1984 In exercise of the powers conferred by sub-section (2) of Section 123 of the Customs Act, 1962 (52 of 1962) and in supersession of the notifications of the Government of India in the Ministry of Finance (Department of Revenue and Insurance) No. 88-Customs, dated the 26th August, 1967 and No. 52-Customs, dated the 27th March, 1968, the Central Government hereby specifies the following other classes of goods, for the purpose of the said section, namely :- 1. Cosmetics 2. Cigarettes 3. Transistors and Diodes 4. Synthetic yarn and Metallised yarn 5. Fabrics made wholly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the show cause notice, had placed necessary evidence as to the acquisition of the cassettes and the Revenue has not placed any evidence which shows that the video cassettes were smuggled. Para 12 of the Hon ble Allahabad High Court judgment in the case of Ashok Kumar and another v. Collector of Central Excise and Customs, Kanpur and another reported in 1984 (15) E.L.T. 400 (All.) is reproduced below :- Accordingly the presumption of the nature mentioned above can be raised only in respect of the goods to which Section 123 applies. According to sub-section (2) of Section 123, the section would apply to gold, diamonds, manufactures of gold or diamonds, watches and any other class of goods which the Central Government may by notification in Official Gazette specify. Video cassettes do not fall in the category of gold, diamonds, manufactures of gold or diamonds and watches. Learned Counsel could not bring to our notice any notification by the Central Government which has made the provisions of Section 123 applicable in respect of video cassettes. The respondents therefore were clearly in error in thinking that burden of proving that the cassettes seized from petitioners busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordered absolute confiscation of the following items of Annexures A C :- ANNEXURE A Description of goods Quantity Value (Rs.) 1. Stereo Radio Cassettes recorder Sanyo Model M 9935K 1 2,000/- 2. National Compact Stereo Radio Cassettes recorder, 14W-RXF-3F - Made in Japan 1 2,000/- 3. National 2 way 4 Speaker System 14W Stereo RXF-6F 1 2,000/- 4. Sanyo 2X1 Model 1760+A1 (Mini and Slim) ANNEXURE C 1 700/- ANNEXURE C 1. Set of two ps each Unisef Packable cassettes recorder AF-52 3 1,700/- 2. Sanyo Radio cassette recorder with 3 Band Radio Transistor, Model No. 1760 4, Made in Japan 2 2,400/- 3. Sanyo cassette recorder with three Band Transistor, Model No. 1760H of foreign origin 1 1,200/- 4. Great-on Speaker, Model M.S.518 SN, Made in Japan, each set of 2 ps. 2 sets 500/- We feel that keeping in view the facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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