TMI Blog1991 (5) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... -1988, they searched the residential premises of the appellant and as a result they recovered 45 pieces of wrist watch movements-ST-69N (Swiss made), and 47 pcs. of wrist watch movements-ST-69N (Swiss made), and 4 pcs. of wrist watches - Anglo Swiss cavalry fitted with ST-96-N (Swiss made movements). Further, Indian currency of Rs. 10,000/- was recovered from underneath the bed in the cot placed in the bedroom of the said premises. The appellant could not produce any document in support of the legal possession of the goods recovered and, therefore, on a reasonable belief that the said goods were smuggled into India and the Indian currency recovered was the sale proceeds of smuggled goods, the same were seized under a search list. Thereafter, the shop premises of the appellant named and styled as M/s. Das Nagar Watch Co. was also searched by the Officers on the same day, i.e. 14-12-1988 in the presence of independent witnesses. The search resulted in the seizure of 8 pcs. of Wrist Watch, Anglo Swiss Tiny fitted with movements S-69-N ST-96N (Swiss made), 7 pcs. of wrist watches, Anglo Swiss Cavalry fitted with movements. Indian currency amounting to Rs. 15,000/- was also recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C-367/89 Shri Srikanta Haldar and Shri Sushanta Haldar v. Collector of Customs (Preventive), West Bengal, Calcutta - 1991 (53) E.L.T. 425 (Tri.)] and contended that it was not proved by the department that the amounts seized were the sale proceed of the smuggled goods. Another unreported decision of the Tribunal in the case of Collector of Customs (Prev.), West Bengal v. Sri Tulsi Sarkar, vide Order No. 69/Cal/89 dated 3rd February, 1989 [Appeal No. C-363/88] was relied on by the learned Consultant, to contend that there is no proof to show that Indian currency is the sale proceeds of the smuggled goods. Relying on the abovesaid judgment, he contended that the confiscation of the Indian currency is not in accordance with law. He further relied on the decision of the Tribunal[vii] reported in 1984 (18) E.L.T. 274 to contend that when there is no record to show that the applicant had imported any goods and the seized currency represents the sale proceeds of such goods, the same could not have been confiscated. In this connection, he drew my attention of the confessional statement of the appellant. In the first instance, he contended that this is not a voluntary statement. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sarkar, therefore, contended that the burden is on the appellant to prove that these are not smuggled goods. Shri Sarkar also contended that the appellant had given a statement on the very same day of seizure on 14-12-1988 and in that statement, he had clearly stated that this amount of Rs. 10,000/- seized from his residence and the amount of Rs. 15,000/- seized from his shop represents the sale proceeds of the wrist watches fitted with Swiss movements, which he had bought from some brokers. Therefore, he contended that the statement of the appellant clearly goes to show that these amount represents sale proceeds of the smuggled goods. In this connection, Shri Sarkar contended that even though the statement was recorded on 14-12-1988 the appellant chose to deny the statement only on 11-9-1989 when he filed the reply to the show cause notice. Therefore, he contended that this belated retraction is only an afterthought and the original statement is to be taken into account. In this connection, he drew my attention to the following decisions to contend that a belated retraction cannot be considered as a true one and the original statement given by the authority under Section 108 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962. When they were seized on a reasonable belief that these were smuggled goods, the burden has shifted on the appellant to prove that these are not smuggled goods. These were notified goods at the relevant time. The appellant has not discharged his burden. He has only stated in his statement that he had purchased the same from unknown brokers without any bills in this regard. No such bills are produced and admittedly he did not get any such bills for such purchase. In such circumstances, it cannot be said that he has discharged the burden in this case cast on him. Even in the reply to the show cause notice, he has stated that the incident took place due to sheer lack of knowledge on his part with respect to the provisions of the Customs Act, 1968. He merely stated that he purchased them on a belief that they are licitly acquired. Ignorance of law is no excuse in such cases. It is his own case that these watch movements are given to him cheaply and thinking that it is profitable he purchased them and sold certain goods to the customers and, therefore, he purchased the same in good faith. But that is no explanation and the burden cast on him under Section 123 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying the smuggled gold and the sale proceeds and that the commission was paid out of such sale proceeds. In the absence of any evidence to this effect, the confiscation of the Indian currency notes amounting to Rs. 12,790/-is not justified and accordingly the order of confiscation is set aside and the amount is ordered to be returned to Shri Jumma Abdul Gani. On a perusal of the above decision, it is seen that there was no material on record to hold that the amount in question was the sale proceeds of smuggled goods. In the absence of any such evidence their Lordships held that the same could not be confiscated. The above cited decision is not applicable to the facts of this case. The reason is that in this case the applicant has given a statement on the date of seizure i.e. 14-12-1988. This statement was not retracted by him on any occasion except by filing a reply to the show cause notice which was dated more than six months after the issue of show cause notice. The belated retraction of the statement made by the appellant goes to show that the same is an afterthought. The appellant has stated that this statement is not a voluntary statement but there are no circumstances whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... I bought these wrist watch movements for Rs. 125 each. Regarding, cash, I like to state that these amounts so recovered from my residence and also from my shop are the sale proceeds of wrist watches fitted with such movements bought from the brokers without bills. About Rs. 3,500/- belong to my repair business ...... The Customs Officers have returned me Rs. 3,500/- which are the income of my watch repairing business. Regarding the wrist watches and wrist watch movements so recovered from my residence and also from my shop I like to state that the movements are Swiss movements and those were bought by me from different unknown brokers without any bills or vouchers. I do not know their names or addresses." It is thus clear that the confession made by the appellant goes to show that these wrist watch movements which were recovered from his possession were of foreign in origin and that he had purchased the same from some brokers. He has also stated that the currency of Rs. 25,000/- (in total) are the sale proceeds of such wrist watch movements and wrist watches assembled from these movements. Therefore, the statement, if read as whole, goes to show that it amounts to a confes ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
