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TMI Blog1960 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 22,193/- 4. 4 pieces of silver bullion 114 tolas 230/- 5. Uncurrent silver coins numbering 575 865/- 6. Gold bars 49 tolas and 9 mashas 5,475/- 7. 255 Phials of liquid gold 9,875/- 8. Torches 23 9. Playing Cards 3 Dozens 400/- 10. Glass beads 48 packets. Total 46,500/- On July 14, 1951, the Assistant Collector, Ajmer, gave notice to the appellant to show cause and explain why the goods seized from him should not be confiscated under Section 167(8) of the Sea Customs Act and Section 7 of the Land Customs Act. The appellant in his reply stated that items 1 to 5 supra were brought by him from Pakistan after the partition of the country in 1947 and that Items 6 to 10 were purchased by him bona fide for value in Barmer. On October 27, 1951, the appellant appeared before the Collector of Central Excise, who made an inquiry, and admitted before him that Items 6 to 10 were smuggled goods from Pakistan, but in regard to the other items he reiterated his plea that he originally brought them from Pakistan in the year 1947. The collector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellant, except his statement made at the time of seizure of the goods and also at the time of the inquiry that he brought them with him into India in 1947, no other acceptable evidence has been adduced. In the circumstances, the question of onus of proof becomes very important and the decision turns upon the question on whom the burden of proof lies. 5. This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate Customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned, see Sections 168 and 171A of the Sea Customs Act and Sections 5 and 7 of the Land Customs Act. To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Officer, who has reason to believe that any goods have been imported by land from any foreign territory, to demand the permit and to verify whether the goods so imported correspond with the specification contained in the permit. If there was no permit or if the goods did not correspond with the specification contained in the permit, the said goods would be liable to be detained and confiscated. The application of this section is conditioned by the legal requirement to obtain a permit. If no permit is necessary to import goods into India, the provisions of the section cannot be attracted. In the present case the customs barrier was established only in March 1948, that is, after the said items of goods are stated by the appellant to have been brought into India. 8. We cannot also accept the contention that by reason of the provisions of Section 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 1947. Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Pakistan. It would have been better if the Customs authorities had taken that admission in writing from the appellant, for that would prevent the retraction of the confession on second thoughts. That apart, it is more satisfactory if a body entrusted with functions such as the Customs authorities are entrusted with, takes that precaution when its decision is mainly to depend upon such admission. But in this case, having regard to the circumstances under, and the manner, in which the said confession was made, we have no reason to doubt the correctness of the statements of fact in regard to this matter made in the orders of the Customs authorities. If so, it follows that the finding of the Customs authorities that the appellant purchased the said items, which were smuggled goods, should prevail. The order of confiscation of these five items will, therefore, stand. 11. Even so, it is contended by the learned counsel for the appellant that the Customs authorities went wrong in imposing a penalty on him under Section 167(8) of the Sea Customs Act. The said section reads : "If any goods, the importation or exportation of which is for the time being prohibited or restricted by or und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, (1) the production of a permit from the Reserve Bank of India in respect of the gold within four months from the date of despatch of the impugned order, and (2) the payment of proper customs duties and other charges leviable in respect of the gold within the same period of four months. This Court held, agreeing with the High Court, that the Collector of Customs had no jurisdiction to impose the said two conditions. The learned Additional Solicitor General concedes that the said decision applies to the present case. We do not, therefore, express any view whether that decision can be distinguished in its application to the facts of the present case. On the basis of the concession we hold that the conditions extracted above, being severable from the rest of the other, should be deleted from the said order of the Collector of Central Excise. 13. Learned counsel for the appellant then argues that the option given in the said order to the appellant to redeem the confiscated goods for home consumption within four months of the order on payment of Rs. 25,000 was based upon the validity of the confiscation of all the ten items and, as this Court now holds that confiscation was bad in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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