TMI Blog1984 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... e seized. The commission agent of the said firm was examined. Opinion was obtained from two persons as to the foreign origin of the goods, they were thereupon seized and further investigation carried out. The consignors, were found to be various persons of Calcutta, the appellants being two of them. Notices were sent to them also. One, Shri Sulekh Chand made an application for release of the goods to his custody, but when notices were sent to him he did not respond. The various consignors, including these two appellants, claimed to have lawfully acquired these articles from various persons including persons who had purchased these goods through authorised auction sources. But the Collector of Central Excise, New Delhi disbelieved their clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed that Shri Sarkar was the consignor in respect of 30 out of the 52 bales seized. In the circumstances, the fact, that he had initially claimed to have consigned 21 bales only, would not be a circumstance against the truth of his contentions, if otherwise found acceptable. So far as Shri Latif is concerned, he claims two of the bales only. 5. No doubt, it is contended for the appellants that the certificates obtained from the two persons referred to in the Collector s order ought not to have been accepted, as the appellants were not given an opportunity to test the correctness of the contents of the said certificates. But when questioned as to whether the appellants had demanded an opportunity to cross-examine these two persons dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption of the smuggled character of these goods. But such conclusion on the part of the Collector appears to us to be unjustified. In so far as the goods are admitted to be neither notified under Section 123 of the Customs Act nor covered by Chapter IV-A of the Act, the above circumstances alone would not justify a presumption as to their smuggled character. Therefore, the Collector was not justified in placing the burden on the appellants to prove the lawful origin of these goods in India. 8. Shri Sarkar had been always claiming that out of 30 bales claimed by him, a portion had been purchased by him from another person who had himself purchased these and other goods in auctions conducted by the Customs Department and the balance had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case. In the circumstances, it was really not necessary for either of the appellants to positively prove that the goods had not been smuggled into India. As pointed out for them such goods are freely sold in the auctions held by the Calcutta Port Authorities or by the Customs Authorities. They are thereafter freely sold in the market place also. In the circumstances, there is no ground to presume that these goods must have been smuggled into India, thereby shifting the burden on the appellants to prove that they had not been so smuggled but had been lawfully acquired. 9. Therefore, in the absence of any proof to indicate that the goods claimed by the appellants were not legally imported, the appellants are entitled to the release ..... X X X X Extracts X X X X X X X X Extracts X X X X
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