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TMI Blog1991 (5) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... able in the shop were verified. Consequently, 500 pcs. of Zip Fasteners, according to the Officers, were found in excess than the entries made in the Notified Registers. The other two items are not notified. On a reasonable belief they were seized by the Officers. The statement of the appellant was also recorded. Thereafter, show cause notice were issued. The appellant filed his reply and along with the reply produced receipts for the above three items. After adjudication the impugned order was passed. 2. Shri K.P. Dey, learned Consultant for the appellant contended that the YKK - Zip Fasteners under seizure are of Indian origin. In this connection, he pointed out that the appellant had produced a receipt issued by Modi Enterprises of 27, Amratala Lane, Calcutta, showing that 400 dozens of Zip Fasteners of Indian origin assembled were sold to him. Shri Dey, therefore, contended that these goods are of Indian origin and invocation of Section 123 of the Customs Act was not correct. He also contended that the department has not discharged their burden and on visual examination the department could not have come to the conclusion that the goods are of foreign origin. In support of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the department that these are smuggled goods and they having been seized on a reasonable belief that they were imported into the country illegally, the department has discharged their burden. In this connection, he relied on the decision of the Tribunal reported in 1986 (25) E.L.T. 811 in the case of/din Enterprises v. Collector of Customs. He also contended that the cash memo produced by the appellant was produced only at the time of filing the reply. There fore, it was contended that this was only an afterthought. Shri Biswas contended that the appellant could not produce any evidence to show that 4300 pcs. of Zip Fasteners were sold out by him. He relied on the decision of the Supreme Court reported in D. Bhoormull's case reported in 1983 (13) E.L.T. 1546 and contended that the department is not required to prove its case with mathematical precision. He, therefore, contended that the appellant had not discharged the burden. He further relied on the decision of this Tribunal in Order No. 418-Cal/90 dated 13-8-1990 in the case of S.P. Daga v. Collector of Customs [1991 (52) E.L.T. 251 (Tri.)]. With respect to the needles in question, he contended that the appellant had prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated that the case of D. Bhoormull is not applicable to the facts of this case. He also drew attention of the Bench to the case of Ambalal, referred to in the aforesaid decision of Bhoormull v. Collector of Customs. He reiterated his submission that the impugned orders are liable to be set aside and the appeal be allowed. Seeking leave of the Bench Shri Dey invited the attention of the court to an invoice which finds a place at page 10A and contended that under that invoice M/s. Devidayal had imported 6,19,200 pieces of industrial sewing machine needles as per In dent No. 7241/42 dated 12-3-1987 and stated that out of these needles the abovesaid needles in question were sold and the relevant invoice finds a place at page 10B of the paper book. 5. Shri Biswas, learned SDR, objected to the above reference at this stage, stating that these facts were not at all disclosed by the appellant at the time of seizure. He pleaded that if the authorities are able to make out a. prima facie case then the onus is on the appellant to discharge the burden cast on him. 6. I have heard the contentions of both the sides. The first point for my determination is whether the confiscation of the zi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appellate Collector also did not discuss about this cash memo at all. Therefore, the confiscation of the same under Section 111(d) of the Customs Act is not in accordance with law. But the same is confiscated under Section 111(p) of the Customs Act. Section 111(p) is to the effect that the goods which are notified, in relation to which any provisions of Chapter 4A or any rule have been contravened, the same is liable for confiscation. Section 11(e) of the Customs Act which comes under Chapter 4A is to the effect that every person, who on or after notified date owns, possesses, or controls or acquires any notified goods, shall maintain a true and complete account of such goods and shall make an entry in the said account about the possession of such goods. Section 11(e)(2) states that every person who owns, possesses or controls any notified goods and who uses any such goods for the manufacture of any other goods shall maintain a true and complete account of the notified goods so used by him and shall keep such accounts at the intimated place. It is now clear that the shop of the appellant is a notified place and he had maintained an account with respect to the notified goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selling these needles imported by them from a foreign company, to the appellant, cannot be ruled out. In such circumstances, J extend the benefit of doubt to the appellant and hold that the confiscation of these sewing machine needles are not in accordance with the law and the same is set aside. 8. The next point for my consideration is whether confiscation of the pant hooks are in accordance with law. It is not disputed by the appellant that these are foreign in origin. No such claim is made by the appellant in reply to the show cause notice. On the contrary, the appellant had produced a challan issued by Prasaran Enterprises of Calcutta to show that he had purchased 300 gross Trouser Hook and Bar (Made in Czechoslovakia) for a sum of Rs. 6,000/-. These pant hooks were seized on a reasonable belief that they were smuggled into India and there was prima facie evidence for the department to conclude that these were foreign in origin. It is also not disputed by the appellant that these are not foreign goods. It is no doubt true that the mere fact that the goods are foreign does not show that they are smuggled goods. But in coming to that conclusion, the Tribunal can also take into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (13) E.L.T. 1546 pp. 1556] 9. Their Lordships, while coming to the above conclusion, had relied on several circumstances which were peculiar to the facts of that case. Those facts and circumstances were innumerable in number and some of the circumstances were dealt with by their Lordships in Para 36 of the abovesaid judgment, as follows :- "36. The importation of such goods into India had been banned several years earlier, i.e. some of them in 1957 and of others in 1960. These goods, without exception, were all of foreign origin. They were of large value of over Rs. 12,000/-. They were all lying packed as if they had been freshly delivered, or were ready for despatch to a further destination. They were not lying exhibited for sale in the show-cases of the shop. Baboothmull from whose apparent custody or physical possession, they were seized disclaimed not only their ownership but also all knowledge about the contents of the packages. He could not give a satisfactory account as to how those packages came into his shop. At first, he said that some next-door unknown broker had left them outside his shop. Some days later, he came out with another version viz. that one Bhoormull had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, it cannot be said that the burden had shifted on the appellant to prove that these pant hooks are not smuggled ones. It is no doubt true that the appellant had produced a bill from Prasaran Enterprises dated 1-6-1986 even though the goods were seized on 31-5-1988. This clearly shows that this bill does not pertain to the pant hooks in question. However, since this item was not notified item and merely because it was foreign goods, in the absence of any other evidence, it cannot be said that the officers had a reasonable belief that they were smuggled goods. The decision relied on by the appellant in this regard [1987 (27) E.L.T. 524 (Tribunal), Gudipati Papa Rao v. Collector of Central Excise, Guntur] applies to the facts of this case. It was held in that decision that the mere fact that the goods appear to be of foreign origin would not clothe the authorities with any jurisdiction to effect the seizure. Again, in the case reported in 1986 (26) E.L.T. 792 (Tri.) = 1986 (8) ECR 669, the Tribunal held as follows :- "Even if we assume that the goods are of foreign origin, that by itself would not be sufficient to order confiscation in the absence of clear evidence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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