JUDGMENT
P.S. Bajaj, Member (J)
1. The appellant in this appeal has questioned the validity of the impugned order-in-original dated 29.6.2001 vide which the Commissioner of Customs has ordered the confiscation of the goods (computer parts) and imposed penalty of Rs. 10 lakhs on him.
2. On 24.4.2000, on receipt of information, the officers of the New Customs House, New Delhi, conducted raid on the residential premises of the appellant located on the first floor T-7, DCM Road, Kishan Ganj, Delhi and effected the recovery of 3 zipper rexin carry bags which contained 928 computer parts of foreign origin. The officers seized all those computer parts and prepared the panchnama in that regard on the spot, as the appellant could not produce documents regarding the legal import and possession of those parts. This seizure was made under Section 110 of the Customs Act on the plea that the parts had been smuggled into India illegally and were liable for confiscation under the Customs Act. The recovery of the parts was not disputed by the appellant in his statement which was recorded on the spot on 24.4.2000 as well as or the following date i.e. 25.4.2000. At the time of raid, one Mohd. Sohail was also present in the premises alongwith the appellant and his statement was also recorded wherein he disowned the goods. But the appellant admitted in his statement that these goods used to be sent to him by one Hasim after smuggling the same from Nepal and that he had been further delivering these goods on his direction to other persons. On completion of investigation, show cause notice was issued to the appellant proposing confiscation of the seized goods and imposition of penalty on him. In reply, he disowned the goods and also averred that the confessional statement was obtained under duress and threat. He denied the smuggled nature of the seized goods. The Commissioner (Adjudication), through the impugned order, after rejecting the appellant’s version, ordered confiscation of the goods with option to get the same redeemed on payment of a fine of Rs. 15 lakhs. He had also imposed penalty of Rs. 10 lakhs on the appellant.
3. We have heard both sides. From the record, we find that the impugned order has been passed by the Commissioner by taking into consideration the two factors, firstly, the recovery of the goods (computer parts) bearing foreign marking such as Japan, and Korea and secondly, the alleged confessional statement of the appellant himself regarding the smuggled nature of the goods. But in our view, the learned Commissioner was wrongly influenced by these factors while passing the impugned order. The goods were seized from the residential premises situated on the first floor, T-7 DCM Road, Kishan Ganj, Delhi. The appellant was admittedly at that time not the owner of the premises. There is nothing on the record to suggest if any attempt was made to ascertain the ownership of that premises. At the time of raid, besides the appellant, another person, Mohd. Sohail was also present in that very room from where the goods were seized. That being so, it could not be said that the seized goods were recovered from the possession of the appellant alone. Rather legally, the recovery was in fact effected from the joint possession of both of them. But strange enough, Mohd. Sohail had been let off, after simply recording his statement without holding any further enquiry about his nature of the possession of the premises. Even the nature of the possession of the appellant in the premises from where the goods were seized had not been enquired into. There is nothing on the record to suggest if the possession of the appellant of the premises was a tenant or licencee and under whom. The ownership of the premises as observed above, had not been ascertained during the course of investigation.
4. Apart from this, the seized goods (at that time) were not prohibited goods in terms of Section 123 or Chapter IVA of the Customs Act. They were freely marketable and available for sale and purchase in the market. The fact that the goods carried the name of foreign countries such as Japan and Korea was not sufficient to raise legal presumption about the smuggled character of the goods. The initial burden was on the Department to prove that the seized goods were smuggled into India. But in our view, this burden had not been discharged by the Department at all.
5. The alleged confessional statement of the appellant that one Hasim used to smuggle the goods from Nepal and sent to him at Delhi could not be taken to be the conclusive proof of the smuggled nature of the goods. This fact was rather required to be proved by positive and acceptable evidence by the Department which it had failed to prove. Moreover, the alleged confessional statement was retracted by the appellant when he was produced before the Court by alleging that the same was obtained from him under duress, and torture and as such, it did not carry much credence and value. No attempt was made to catch hold of Hasim. No evidence had been also collected to seek corroboration of the confessional statement of the appellant. The appellant in fact could not be said to have any positive personal knowledge about the smuggled nature of the goods as he never himself had gone to Nepal to bring the goods. He could not know the origin of the goods as he could hardly put his name in Hindi script as is evident from the panchnama. Therefore, under these circumstances, no capital out of the alleged confessional statement of the appellant could be made by the Department in order to cover up its failure to prove the smuggled character of the seized goods, which as observed above, were otherwise freely available in the market for sale and purchase. In the light of the discussion made above, in our view, the impugned order of the Commissioner (Appeals) cannot be legally sustained and the same deserves to be set aside.
6. Consequently the impugned order of the Commissioner (Appeals) is set
aside and the appeal of the appellant is accepted with consequential relief, if
any, permissible under the law.