ORDER
S. Kalyanani, Member
1. This appeal is directed against the order of the Collector of Customs (Appeals), Madras dated 26.4.1988 confirming the order of the Assistant Collector of Customs, Madras dated 20.11.1985 and confiscating absolutely 11,000 Nos. of zip fasteners of foreign origin under Section 111(d) and (p) of the Customs Act, 1962 (‘the Act’ for short) read with Section 3(2) of the Import and Export (Control) Act, 1947 and imposing a penalty of Rs. l,000/- under Section 112 of the Act.
2. On the basis of prior information, on 27.12 1984 at about 10.00 a.m., the Customs Officers searched the godown at No. 19, Nainiappa Maistri St., Madras-3, belonging to the appellant herein. The appellant was not present at that time. The authorities found zip fasteners of foreign origin totalling 11,000 Nos. and since there were no documents or valid vouchers to prove the licit origin of the goods, the authorities effected the seizure of the same under a mahazar as per law. Further proceedings alter necessary investigation, ultimately resulted in the present impugned order now appealed against.
3. Shri S. Sabapathi, the learned Consultant for the appellant submits that the original authority had been labouring under a misapprehension that the goods were notified under Chapter IVA and Section 123 of the Act prior to the date of seizure and when Appellant purchased item on 31.1.1i984 and has proceeded to confiscate the goods and levy a penalty. It was urged that the goods were lawfully acquired by the appellant on 31, 1984 under Bill No. 3631 of M/s. Murray and Co. The goods became notified under Chapter IVA and Section 123 of the Act respectively under Notification Nos. 204 and 205 Customs of 1984 dated 20 7.1984 and the appellant had made a due declaration in regard to the possession of the notified goods to the authorities as per law on 11.9.1984 itself. It was further submitted that the declaration was also approved by the authorities on 1.10.1984 and the authorities also had given a Declaration No. 916/84 on 1.10.1984. It was further submitted that the next day after seizure viz. 28.12.1984 itself at 7.05 a.m. the appellant sent a telegram informing the authorities that the goods had been lawfully acquired by him in terms of the Declaration No. 916/84 and followed up the same with a detailed representation. The learned consultant therefore, urged that when proper declaration had been made in respect of the goods by due notice to the authorities, who had also accepted the declaration and when the appellant who was away at the time of search coming to know about the search had immediately issued a telegram to the authorities on 28.12.1984 itself mentioning the fact of declaration giving in particular the Declaration No. 916/84, the order of the authority confiscating the goods under Section 111(d) and (p) of the Act and consequential penalty is legally unsustainable. The learned consultant further submitted that the only ground urged by the lower appellate authority in the impugned order is that the appellant had not “come out with any concrete evidence to prove his case”.
4. Heard Shri K.K. Bhatia, the learned S.D.R.
5. We have carefully considered the submissions made before us. The fact that on 27.12.1984 at about 10 a.m. 11,000 Nos. of zip fasteners of foreign origin were seized from the premises of the appellant is admitted It is also not disputed that the goods became notified under the notifications cited supra only on and from 28th July 1984. The appellant also has made a declaration of having been in possession of the notified goods in terms of Chap IVA and Section 123 of the Act on 11.9.1984 and the declaration of the appellant has also been accepted by the authorities The learned consultant produced before us the register relating to Notified Goods in the possession of the appellant where the following endorsement has been made by the Supdt. of Customs on 1.10.1984.-
Declaration No. 916/84
Certified that this register contains 176 pages serially numbered from pages I to 176 namely “Zip Fasteners”. Legal acquisition and particulars as required under Customs Act, 1962 (as amended) should be maintained to this register; otherwise, the goods are liable for seizure.
Sd/- x x x x x
1.10.1984
Supdt. of Customs (Prev.),
Notified Goods Unit,
Rummaging Division:
Custom House, Madras.
Apart from it, we find that while the seizure of the goods was on 27.12.1984 the appellant sent a telegram on 28.12.84 at 7.05 a.m. which reads as under.-
Shop No, 19 Nyniappa Maistri St. Madras 3 is a Notified shop vide Declaration No. 916/84 dated 1.10.1984 your staff has broken lock and open the shop and seized the entire YKK zip fasteners in my absence which were covered with proper Bill with enter in the Notified goods stock register Requesting release of goods immediately.
It would be relevant to note in this context that the telegram specifically refers to Declaration No. 916/84 dated 1.10.1984 and the entries made in the Notified goods register. We further find that even during personal hearing before the original authority the purchase bill of M/s. Murray and Co. namely, Bill No. 3631 dated 31.1.1984 was also produced. We have gone through this Notified goods register where the bill number 3631 of M/s. Murray and Co. and the purchase of YKK zip fasteners of foreign origin for a quantity of 2,48,900 Nos. (viz. 20,741 doz. & 8 Nos. .) from the said company has been specifically mentioned on the date 31.1.1984 itself. The notified goods register, also, as we are able to see, has been periodically checked and inspected by the authorities, who have also signed the same on various dates of inspection. We also note the sale of zip fasteners on various dates in the notified goods register. Therefore, all the evidence on record clearly establishes that the goods were lawfully acquired by the appellant and intimation of the same was also sent to the authorities to the effect that 2,48,900 Nos. of zip fasteners of foreign origin were lawfully acquired by the appellant on 31.1.1984 under Bill No. 363l of M/s. Murray and Co. which has been duly entered in the Notified goods register on 1.10.1984 with the knowledge and approval of the Department and, therefore, in such circumstances when the appellant also has been continuously effecting sales, as evidenced by the various entries in the notified goods register, the authorities should have verified the Notified goods register and the various entries to ascertain whether the zip fasteners under seizure would be relatable to the goods covered by notified goods register and given a finding. As rightly contended by the learned consultant Shri Sabapathi, the original authority would appear to be labouring under a misapprehension that the goods were notified under Chapter IVA and Section 123 of the Customs Act in January, 1984, which is not correct. The lower appellate authority also found as under.-
The seizure was effected on 27.12.1984 and immediately after two days he sends in a representation stating he is the owner of the impugned goods and the goods are covered by proper purchase bills and that they were entered in the Notified goods stock register, his shop being a notified one from 1.10.1984.”
….”In reply to the show cause notice dt. 2.5.1985 his counsel at the time of personal hearing on 15.11.1985 has submitted that the impugned zip fasteners were purchased from M/s. Murray and Co. under Bill No. 3631 dt. 31.1.1984; as such, the goods were not smuggled and their liability to confiscation does not arise. It is observed that from the date of seizure on 27.12.1984 till 15.1.1985 the appellant except merely claiming that the goods are of licit origin has not made and come out with any concrete evidence to prove his case.
Therefore, in the light of the evidence available on record and for the reasons set out above, we set aside the impugned order and remit the matter to the original authority for the purpose of ascertaining and correlating the goods under seizure with reference to the goods found available with the appellant as per the Notified Goods stock register. Since the matter is pending for quite a long time, we direct the original authority to dispose of the matter within one month from the date of receipt of this order as far as possible.