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TMI Blog2001 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein he reiterated that the gold in question was purchased from one P. Thomas and gave a telephone number as belonging to said Thomas. The efforts of the Customs Officers to locate the said Thomas proved futile as he was found to be a non-existing person and the telephone number given by the respondent was found to be a telephone registered in the name of State Bank of Travancore, Mannanam Branch. 2.On 28-10-1994, i.e., 6 days later, one Balan wrote a letter to the Central Excise Superintendent, SCP Unit, Kodungalloor and claimed that he had bought 42 gold biscuits from Dubai on 19-10-1994 and cleared the same on payment of customs duty at Trivandrum Airport. He also stated that out of the same he had handed over as many as 30 gold biscuits to the respondent herein for selling them at Coimbatore. He enclosed a copy of the receipt indicating the payment of duty on 42 gold biscuits. After the receipt of the letter of said Balan, i.e. on 31-10-1994, the respondent wrote a letter corroborating the claim of said Balan. In a subsequent statement made on 14-11-1994 he retracted the statement made to the Customs Officers on 23-10-1994 and affirmed the claim of said Balan. 3.Both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court dated 5-1-1999 and the High Court by the said order came to the conclusion that the finding recorded by the statutory authorities is based on no evidence and can be regarded as perverse, consequently issued a direction to the Commissioner of Central Excise, Cochin, to return the 30 gold biscuits seized from the respondent herein. 6.It is against the judgment of the High Court that the appellants have preferred this appeal. It is contended on behalf of the appellants before us that both the original and the appellate authorities have carefully considered the material that was placed before them by the Department as well as the respondent and said Balan (who is not a respondent in this appeal before us) and having appreciated the evidence on record, the said authorities have correctly come to the conclusion that the gold in question was not legally imported into India. It was also pointed out that from the first statement of the respondent it was clear that he did not even know who was the importer of the gold and whether any duty was paid for the import of the said gold. It was also pointed out that the respondent was not in possession of any document to show the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt rightly noticed its limited jurisdiction under Articles 226 and 227 of the Constitution, it still proceeded to reappreciate the evidence on record and substitute its subjective opinion in place of the concurrent findings given by the statutory authorities. We are also of the opinion that the finding of the High Court that the conclusions arrived at by the statutory authority were not based on any evidence or could be regarded as perverse, is erroneous and contrary to facts. Therefore, it has become necessary for us to refer, though briefly, to the findings arrived at by the statutory authorities while deciding this case to find out whether the High Court was justified in reversing the finding of fact recorded by the statutory authorities. 9.It is an undisputed fact that the respondent herein was intercepted in the early hours of 22-10-1994 by the police of Chalakudy. During that process, police recovered from his possession as many as 30 gold biscuits with foreign markings. The respondent was then handed over to the Customs Authorities at Kodungalloor who recorded his statement in which admittedly the respondent did state that he purchased the said gold biscuits from one P. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing legally imported and belonging to Balan. Both the authorities below also rejected the document produced by Balan on the ground that the gold mentioned in that document could not be correlated to the gold recovered from the possession of the respondent. We do not find any perversity in the appreciation of this evidence by the original authority and the tribunal. It is based on these facts and circumstances that the gold seized from the possession of the respondent was confiscated by the order of the original authority as confirmed by the appellate authority. These findings of the authorities below to which we have made a brief reference to show that the findings are based on the material on record and, in our opinion, are arrived at on a reasonable and legitimate assessment of the evidence on record. 10.The High Court, however, by the impugned order came to the conclusion that the initial burden of proving that the goods in question were smuggled, lay on the Department which according to it, was not discharged by the Department. This conclusion of the High Court is obviously based on a misappreciation of the evidence that was already considered by the lower authorities. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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