Surendra Kumar Jain vs Collector Of C. Ex. on 28 March, 1989

Customs, Excise and Gold Tribunal – Tamil Nadu
Surendra Kumar Jain vs Collector Of C. Ex. on 28 March, 1989
Equivalent citations: 1989 (24) ECR 161 Tri Chennai, 1990 (45) ELT 127 Tri Chennai


K.S. Venkataramani, Member (T)

1. This appeal is directed against the order dated 3-7-1987 passed by the Collector of Customs (Appeals), Madras, by which he had upheld the order passed by the Deputy Collector of Central Excise, Madras, dated 29-8-1986 confiscating absolutely a quantity of YKK zips of foreign origin totalling 46,648 Nos. under Section 111(d) of the Customs Act, 1962.

2. The facts in brief are that on information the Headquarters Preventive Unit of Madras Central Excise Collectorate inspected 3 gunny covered cases lying in the outward parcel office of the Madras Central Station on 27-8-1982, which led to the recovery of 46,648 Nos. YKK Nylon zip fasteners. The outer covers of the said 3 cases bore the words “S.M. Mehta, New Delhi”. Since nobody came forward to claim the goods and there was no information available as to who brought the consignments for booking, the goods were seized by the officers for action under the Customs Act on the reasonable belief that they were imported in contravention of law. Subsequent to the seizure, Shri Subudhinath, partner of R.S. Enterprises of Madras, wrote a letter dated 6-9-1982 to the Assistant Collector of Madras, in which he said that he had taken delivery of 4000 dozens of YKK Nylon zip fasteners from M/s. Goyals Dresses, Madras on instructions from M/s. Surendra Stores, New Delhi, and had packed them in 3 tea-chests covered with gunny and had sent the same for booking by rail to Delhi on 27-8-1982 with his coolie. He said that the zips belonged to the Delhi firm. A statement was obtained from Shri Subudhinath Jain on 8-9-1982 in which he said that he knew appellant Surendra Kumar Jain of New Delhi who had requested him to take delivery of 4000 dozens of zip fasteners from M/s. Goyals, Madras, and despatch the same to him at Delhi. He said that after asking his coolie to book the goods to Delhi by train on 27-8-1982 he left for Tirupathi and when he returned on 30-8-1982 the coolie informed him that the goods had been seized and on seeing the officers of Customs he ran away. Appellant Surendra Kumar Jain in his statement on 8-9-1982 said that on receiving a telephonic message on 2-9-1982 from Subudhinath Jain of Madras about the seizure of the zips by the Customs he came to Madras on 5-9-1982 and enquired from Shri Goyal about the seizure of the zips and that he was told that the goods were licitly imported by M/s. Goyals. It is in these circumstances, following further investigation, proceedings were instituted against the appellant and the goods were confiscated by the order of the Deputy Collector, which was upheld by the Collector of Customs (Appeals), Madras.

3. Shri Suganchand Jain, the learned counsel appearing for the appellant, contended that the Collector (Appeals) in his order had held that the provisions of Section 123 of the Customs Act under which the onus to prove that the goods are not contraband is on the party would apply to the goods which is incorrect, because the goods had been seized in this case in 1982 whereas Nylon zip fasteners were notified under Section 123 and Section 11B of the Customs Act only in July, 1984. Further, the learned counsel pointed out that the finding of the Deputy Collector that the goods under confiscation are of Japanese origin is not supported by the mahazar. Therefore, it cannot be said by the Department that the invoices produced by them showing zips of Singapore origin are not rclatable to the goods under confiscation. The learned counsel explained that the goods had been licitly purchased from M/s. Goyals who had imported them under a valid import licence. Appellant had also made the payment through Bank for the goods the details of which were furnished by the learned counsel during the hearing. In the circumstances the learned counsel urged that the confiscation of the goods was bad in law.

4. Shri Bhatia, the learned Senior D.R. appearing for the Department, contended that the claim for the goods from the appellant was belated and was not made immediately after the seizure. The version that the booking of the zip fasteners to Delhi was left to the coolie lacked conviction. The invoice produced by the appellant for the purchase of the goods from M/s. Goyals is not shown to be relatable to the goods under confiscation as during the adjudication proceedings M/s. Goyals did not come forward to prove the licit import of the goods against a valid licence.

5. We have given careful consideration to the submissions made by the learned counsel and the learned Senior D.R. The seizure of the Nylon zip fasteners in this case is not disputed. The appellant has urged that the zips were purchased bonafide by him from M/s. Goyals, Madras, for which payment was made by him through bank and that they were covered by the invoices issued by M/s. Goyals. However, it is seen that in this case the seizure of the goods took place on 27-8-1982 whereas the appellant herein as the purchaser of the zip fasteners never made any claim directly before the Customs Department immediately on coming to know of the seizure. Again, his agent in Madras for taking delivery of the zips, according to his version, and sending it by rail to Delhi is Shri Subudhinath Jain. This gentleman appears to have entrusted the task of booking a large quantity of foreign zips of high value to his coolie, and says that even though the was in error in having invoked the Section 123 of the Customs Act, because the provisions of this section had not been extended at the material time to zip fasteners which was covered by the Notification bringing it under Section 123 only in July, 1984. This very Notification and the question whether it will have any retrospective effect came to be considered by the Hon’ble Karnataka High Court in a habeas corpus Writ Petition No. 135/84 wherein the Hon’ble Karnataka High Court relied upon the Supreme Court judgment in A.I.R. 1975 S.C. 2083 Belamul v. State of Maharashtra and held that what is contained in Section 123 relates to proof, and is, therefore, a procedural matter and since procedural provisions of law can be given retrospective effect Notification 204/84 dated 20-7-1984 which brought zip fasteners within the ambit of Section 123, has retrospective effect. Admittedly, the goods viz. zip fasteners are goods which are eligible for import only against a valid import licence. The claim of the appellant that the goods under confiscation are those purchased against the invoice issued to him by M/s. Goyals Dresses has not been established by evidence as discussed above. In the circumstances there is no reason to interfere with the order passed by the lower authority and the appeal is rejected.

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