TMI Blog2015 (5) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... - 4-5-2015 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. For the Appellant : Mr. Arijit Chakrabarti with Mr. N. K. Chowdhury, Advocates For the Respondent: Mr. S. B. Saraf with Mr. K. K. Maiti, Advocates The Court : The subject matter of challenge in the appeal is a judgment and order dated 13th April, 2009 passed by the Customs, Excise and Services Tax Appellate Tribunal dismissing an appeal preferred by the appellant. When the appeal was admitted, the following question of law was formulated exparte : Whether the Tribunal below committed substantial error of law in holding that the appellant has not properly discharged the burden of proof when, admittedly, the seizure was initially made by Railway Protection Force and subsequently handed over to the Customs by not following the principle enunciated by the Supreme Court in the case reported in 1993(13) E.L.T. 1365. On an earlier occasion when the appeal was taken up for hearing, Mr. Chakrabarti, learned advocate appearing for the appellant, submitted that an additional question of law should be formulated for ends of justice, which is as follows: Whether the order u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the unilateral act of the person seizing is the very essence of the concept. 9. There is another matter to which reference should be made which, in our opinion, conclusively establishes that the delivery of goods to the Customs authorities under the latter part of Section 180 is not seizure under the Act within the meaning of Section 178A. The last part of sub-section (1) of Section 178A, lays the burden of proving that the goods are not smuggled on the person from whose possession the goods are taken. Assuredly when the goods are delivered to the Customs authorities by the Magistrate they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the section contemplated proof to the contrary by the Magistrate under whose orders the delivery was effected. For the purpose of deciding the point arising in this case we do not think it necessary to enter into the philosophy of refinements of the law as to the nature of possession. When the goods were seized by the police they ceased to be in the possession of the accused and passed into the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. Mr. Chakrabarti contended that the goods were not seized under Section 123 of the Customs Act. On the contrary the goods were seized by the railway police. This submission of Mr. Chakrabarti has seriously been disputed by Mr. Saraf, learned advocate appearing for the respondent. His first submission is that the appeal itself is incompetent because the appellant succeeded to have the appeal admitted on a wrong premise of fact by untruly suggesting in the question formulated at the time of admission that admittedly, the seizure was initially made by Railway Protection Force and subsequently handed over to the customs . Mr. Saraf added that the appellant suppressed the fact that a Seizure List under Section 110 of the Customs Act was prepared by the Inspector, Kaliachak, Customs, Preventive Unit in the presence of witnesses at the time of seizure of the goods. The appellant has also signed the seizure list. Mr. Chakrabarti submitted that the seizure list also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not smuggled goods is squarely on the appellant, which he failed to discharge. Therefore, the finding arrived at by the learned Tribunal that the judgment in the case of Gian Chand did not apply is just and correct. Therefore, the first question is accordingly answered in favour of the respondent/revenue. The second question, indicated above, depends upon construction of Section 125 of the Customs Act, 1962 which provides as follows: 125. Option to pay fine in lieu of confiscation. (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion should not be exercised according to whim, caprice or ritual. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity. Those drivers would have served the Corporation till their superannuation but for their unfortunate medical unfitness to carry on the driver s job. Therefore, it would not be improper if the discretion is exercised with greater concern for and sympathetic outlook to the disabled drivers subject of course to the paramount consideration of good and efficient administration. We are unable to accept the submission of Mr. Saraf that the point was not raised by the appellant. The point of substance is other way round. Was the adjudicating authority alive of its obligation that the law had vested the discretion in him to be exercised judiciously and honestly? From the judgments they appear to have been oblivious. Therefore, the order of confiscation is wrong. Whenever, discretion has been vested the administrative authority shall do well to at least briefly record the reasons why they chose to exercise the discretion in one way or the other. ..... 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