{"id":163764,"date":"1985-03-06T00:00:00","date_gmt":"1985-03-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-sheela-sumbaly-and-mrs-neela-vs-collector-of-central-excise-and-on-6-march-1985"},"modified":"2018-07-22T09:07:59","modified_gmt":"2018-07-22T03:37:59","slug":"mrs-sheela-sumbaly-and-mrs-neela-vs-collector-of-central-excise-and-on-6-march-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-sheela-sumbaly-and-mrs-neela-vs-collector-of-central-excise-and-on-6-march-1985","title":{"rendered":"Mrs. Sheela Sumbaly And Mrs. Neela … vs Collector Of Central Excise And … on 6 March, 1985"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Mrs. Sheela Sumbaly And Mrs. Neela … vs Collector Of Central Excise And … on 6 March, 1985<\/div>\n
Equivalent citations: 1985 (21) ELT 857 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 V.T. Raghavachari, Member (J) <\/p>\n
1. These four appeals arise out of common facts and were, therefore, heard together. The appellant in Appeal Nos. 6\/82 and 159\/83 is Mrs. Sheela Surabaly and the appellant in Appeal Nos. 8\/82 and 158\/83 is Mrs. Neena Raina.\n<\/p>\n
2.    The facts in brief are as follows :-\n<\/p>\n
(i) On 3-11-1981 during the course of a raid by the Officers of the Enforcement Directorate the residential premises of Mr. V. K. Raina were searched. On enquiry Mrs. Neena Raina gave reference to lockers in the name of Mr. Raina and the Officers were taken by her to the locker section of the Bank of Baroda in Greater Kailash Pt. I. The locker jointly in the name of Mr. and Mrs. Raina was then opened by Mrs. Raina and a search of the contents thereof disclosed, amongst other things, 10 gold bars of 10 Tolas each bearing foreign marks. The locker was sealed and the key was taken away by the Officers of the Enforcement Directorate. The next day (4-11-1981) the locker was again opened by the Officers of the Directorate of Revenue Intelligence and they took possession of various articles therein including the above said 10 gold bars. Statements were then recorded from Mr. and Mrs. Raina as well as Mrs. Sheela Sumbaly and various others. Subsequently a show cause notice dated 2-2-1982 was issued to these two appellants and others. Notice had been issued to Mrs. Sheela Sumbaly also since the investigation preceding the issue of show cause notice had disclosed that it was she who had brought the 10 gold bars and left them in the locker. Mrs. Raina replied that she was unaware of the contents of the package which she had allowed her mother to place in the locker for safe custody and it was only at the time of inspection of the locker on 3-11-1981 that she became aware that the cloth bag kept by her mother in the locker contained gold bars of foreign origin. She, therefore, denied, that she had been ever in conscious possession thereof. In other respects she adopted the reply of her mother, Mrs. Sheela Sumbaly. Mrs. Sumbaly had mentioned in her reply that she had received the cloth bag from her father-in-law for safe custody some time earlier and was taking it back to be returned to him when on the way she, halted in her daughter’s house and at that time, for safe custody, left it in the locker of her daughter. She denied having admitted during the investigation her knowledge of the gold or the possession  thereof with such knowledge. She further contended that the gold in question had been acquired by her father-in-law, Shri Dina Nath in 1946 in India itself (as it then stood) and there was, therefore, no contravention of any of the provisions of the Customs Act.\n<\/p>\n
(ii) The show cause   notice had been  issued, to   Mr.  Raina as well as Mr. Dina Nath and his wife, Yamber Zali Sumbaly. But Shri Dina Nath Sumbaly and his wife, Mrs. Yamber Zali Sumbaly had expired on 24-3-1982 and 30-3-1982 respectively and notices were, therefore, returned with that endorsement.\n<\/p>\n
(iii) On adjudication the Collector of Customs, New Delhi, exonerated Mr. Raina but he found the charges established against these two appellants, Mrs. Neena Raina and her mother, Mrs. Sheela Sumbaly. He ordered confiscation of the gold seized under Section 11 l(d) of the Customs Act and Section 71 of the Gold (Control) Act but ordered release of other articles. Under Section 112 of the Customs Act he imposed a penalty of Rs. 40,000 on Mrs. Sheela Sumbaly and another penalty of Rs. 10,000\/- on her under Section 74 of the Gold (Control) Act. He imposed a penalty of Rs. 10,000\/- on Smt. Neena Raina under Section 112 of the Customs Act but imposed no separate penalty on her under Section 74 of the Gold (Control) Act.\n<\/p>\n
3.    It is against the said order that these four appeals have  been  preferred to this Tribunal.  We have heard  Shri K.C. Aggarwal,  Advocate, for  the appellants and Shri K.C. Sachar, Departmental Representative, for the respondent Collector.\n<\/p>\n
4.    The fact of seizure of the  10 gold bars from  the locker standing in the name of Mr. and Mrs. Raina is not in dispute.   Nor it is disputed that they were gold bars with foreign markings  but both the appellants claim  that they were unaware of the contents of the cloth   bag and  were,  therefore,   never in conscious  possession of the gold.  They further contend that in  any event no offence under the Customs Act is established with reference thereto for certain reasons advanced by them.\n<\/p>\n
5.    The first contention of Shri Aggarwal is that the gold in question had been seized  on 3-11-1981 itself by the Officers of the Enforcement Directorate and as the said officers were not Customs  Officers,  no presumption could be raised  as under  Section 123 of the Customs Act and in  the  absence of such presumption no offence could be deemed to have been committed with reference thereto  except on  proof of  actual   contravention  of   the  provisions  of the Customs Act with reference to these gold bars.  As earlier stated,  the gold bars in  question  have foreign markings.  They would,  therefore,  be notified goods under Section 123 of the Customs Act.   In  that event,  if they had  been  seized by Customs Officers in the reasonable belief that they are smuggled goods, it would be for the appellants to prove that they are not smuggled goods. But the contention of Shri Aggarwal is that as  the  Officers of the   Enforcement Directorate had made the seizure on 3-11-81 and as they are not  Customs Officers, Section 123  does not come  into play and,  therefore, the   department has to independently establish that these  foreign marked gold bars had  been at any particular time imported into India contravening the provisions of the Customs Act.\n<\/p>\n
6.    It is not disputed that the Officers of the Enforcement Directorate are not Customs Officers.  But the case for the department is that the seizure of the gold bars in question was made not on 3-11-81 but on 4-11-81 only and  as the said seizure was by Officers of the Directorate of Revenue Intelligence who are Customs Officers, the provisions of Section 123 come into operation and it would be for the appellants to prove that   the  seized  gold bars  were not  smuggled goods.  It is not disputed that the Officers of the Directorate of Revenue Intelligence are Customs  Officers.  Therefore, the main question  would  be whether the seizure of the gold in question was made on 3-11-81 or on 4-11-81.\n<\/p>\n
7.    The records disclose  that the Panchnama  for the   actual  seizure  is dated 4-11-81.  Shri Aggarwal, no doubt, points out that there is a Panchnama for 3-11-81 also but a reading of this Panchnama dated 3-11-81 shows that what had been actually seized on 3-11-81 was not the gold in question but various other articles in the residential premises of Mr. Raina. Even according to the appellants what had happened thereafter was that the Officers of the Enforcement Directorate accompanied Mrs. Raina to the Bank locker which was opened by her and the Officers took an inventory of the articles in the locker and then locked and sealed the same the key being taken away by the Officers. Shri Aggarwal contends that once the key was taken away by the Officers that meant that the Officers had seized all the articles inside the locker and the fact that there was a formal seizure the next day on 4-11-81, is of no consequence. But seizure under the Customs Act has a special significance and various consequences follow from an actual seizure. The fact, that the person till then in possession is denied access at a particular point of time or his custody is terminated by the key of the locker being taken away, would not amount to a seizure by the Officers, the result of such denial of access being only at best detention without seizure. The Officers of the Enforcement Directorate were not interested in these articles (including the gold bars) which were seized the next day by the Officers of the Revenue Intelligence and it was only to prevent the articles being removed before the proper Officers could come and seize them, that the key of the locker had been taken away by the Officers of the Enforcement Directorate. We hold that there was no seizure on 3-11-81 and that the actual seizure took place on 4-11-81 only. That would mean that the seizure having been made by the Customs Officers under the reasonable belief that the seized articles were smuggled goods; the burden of proving that the subject gold bars were not smuggled goods shifted on to these two appellants.\n<\/p>\n
8.    Therefore, it is now to be considered  whether the  said  burden had been discharged by either of these appellants. As earlier  stated, the sequence of events was, even according to the appellants,  that Mrs.  Sheela Sumbaly had come to  New Delhi  on the way from  Hyderabad to  Kashmir and while visiting her daughter (Mrs. Raina) at New Delhi Mrs. Sumbaly, who had stayed over in New Delhi for a few days, requested Mrs. Raina for permission to keep certain articles in the locker of Mrs. Raina, and Mrs. Raina accommodated her and that is how the said cloth bag containing the subject gold bars came to be kept in the locker of Mrs.  Raina.  The question, therefore, to be considered is whether either Mrs. Sumbaly or Mrs. Raina had knowledge  that the  cloth bag contained gold bars of foreign marking and they were,  therefore, in conscious possession thereof.\n<\/p>\n
9.    So far as  Mrs.   Raina is concerned,  it  is pointed out that in  her statement on 5-11-1981 she bad stated   that her mother carried a  small bag in  her purse which she left in the locker but that she herself (Mrs.   Raina) did not know the contents of the cloth bag nor had  she  even  handled  it  at  any time.     There is nothing in   the  statement   of Mrs. Sumbaly also  to  impute knowledge of the contents to Mrs. Raina.   Nor is there any other evidence for the department which would  establish   that Mrs. Raina must have  had the knowledge of the contents  of the  cloth  bag.    In addition, there is another portion of the statement of Mrs. Raina  which entirely  probables  her version that   when the cloth  bag  was placed in her locker she was unaware of the contents thereof.   It is seen that when she was   examined  on   5-11-1981 she had been questioned as to why on 3-11-1981 she had gone to  the  bank  even before the  Enforcement  Officials visited the  same  with her.    She said that when the officers  came to the house on 3-11-81 for a search of the same   they enquired her about the locker and at that time her mother called her aside and told her to go to the locker and remove the cloth bag since the same contained gold bars with which she (Mrs.  Raina) had nothing to do.   Mrs. Raina had stated that  on  being so informed   by her mother, she went to the bank but was not allowed    to  open   the locker and, therefore, returned back.   This portion of the statement would wholly be in consonance with her version that she was unaware of the contents of the cloth bag when the mother left the same in the locker and, for the first time, became aware of the fact that the bag contained gold bars only when the officers came to the house for a search in connection with her husband’s affairs.\n<\/p>\n
10.    No  doubt,  Mr.  Dina  Nath Sumbaly  when  he was examined on  5-11-1981 at Kashmir, evidently simultaneously, with  the examination of the persons at New Delhi, had  stated  that his  wife had   gifted to the grand daughter  (Mrs.   Raina)  the subject  10 gold  bars  and   certain   other   gold ornaments  at  the time  of the  marriage of the  grand daughter.    This may suggest that Mrs. Raina must have come into possession  of these gold bars even  at  the time  of her marriage in   1967.    But that is not the case of the department, the case of the department  being that the gold bars  had   been brought by Mrs.  Sheela Sumbaly and left in the locker, though, according to the department, with the knowledge of Mrs.  Raina also.   It  must also be noted that the further statement of Mr. Dina Nath was that the gold  bars have been left with his wife and it was she who had  made the present to the grand daughter, he himself not having attended that marriage.\n<\/p>\n
11.    In the above circumstances, we are satisfied that at any rate so far as Smt. Neena Raina is concerned, there is no clinching evidence established that she was in conscious possession of these foreign  marked gold  bars,  her case as to how the same came to be in her locker without her knowledge of the contents, being quite acceptable.\n<\/p>\n
12.    But so far as Mrs. Sheela Sumbaly is concerned, her statement made on 5-11-81 was that the gold bars had been given to her by her mother-in-law in  May,   1980 when she had gone to visit the in-laws in Kashmir but that her husband as well as her father-in-law were not aware of the said entrustment. No  doubt,  in  her subsequent statements or replies Mrs. Sumbaly had tried to make out that the answers had not been properly recorded or that they were not  her answers.  But  it is seen that the statement of 5-11-1980 is entirely in her own hand (vide the photostat copy of the  statement in  the  Paper-Book). Therefore  there  is nothing  to support  the  subsequent disclaimer about the voluntary nature of the statement.    In the said  statement she  had clearly admitted that  she knew the contents of the cloth bag to be the 10 foreign marked gold biscuits and explained the same by saying that they were given to  her by the  mother-in-law in May, 1980 for safe custody and when she was taking them back to Kashmir she left them in the locker of her daughter for safe  custody  during  the  period of stay  at  New  Delhi.    In her subsequent statement recorded on 26-11-81 she had been questioned   about  the  statement of her father-in-law about gold  biscuits having been presented to the grand daughter during her marriage and she had then   stated  that  only gold   ornaments   were presented  to  the  grand daughter (her daughter)  and no  gold biscuits.    In the face of these statements   the  explanation  of Smt.  Sumbaly, that she was unaware  of the contents of the cloth bag until they were seized by the officers, is not at all acceptable.\n<\/p>\n
13.    As earlier mentioned, the statement of Shri Dina Nath is also to be taken into consideration in assessing the acceptability  of the  statements  of Smt.  Sumbaly and Smt.  Raina.   Shri Aggarwal contends that the maker of the statement (Shri Dina Nath) having died  before the actual adjudication proceedings  the  statement cannot  be looked into  or acted upon.    In this connection, he relies upon the decision of the Supreme Court in Jeth Mai v. Union of India (AIR 1970 S.C. 1310). We do not find anything in that judgment to support the above contention. The statement of Shri Dina Nath also having been recorded during the course of the enquiry after the seizure of the gold in question, the statement could be relied upon by the departmental officials though,Shri Dina Nath had subsequently died and was, therefore, not available for examination during the actual adjudication proceedings.\n<\/p>\n
14.    Another judgment to which reference was made by Shri  Aggarwal during his arguments was Ambalal v. Union of India-AIR 1961 S.C. 264 : 1983 E.L.T.   1321  (S.C)].  He relied upon this on the question of burden of proof. No doubt, in the said case the burden of proof was said to lie  on the  department to  prove that the goods in  question had been smuggled into India. But that was on the basis that Section 178A of the Sea Customs  Act did not cover  the said case as the said Section was inserted subsequent to the order of confiscation of the goods.   But in the present case it has been seen that the gold bars in question are admittedly foreign marked and under Section 123 of the Customs Act, the burden rests on the appellants to prove that they were not smuggled into India, in view of the fact that the goods had been seized on 4-11-81 by the Customs  Officers under the reasonable belief that they are smuggled goods.    Therefore, the observations in AIR 1961 SC 264 do not help the appellants in these appeals.\n<\/p>\n
15.    In  the light of the above discussion, we hold that so far as Mrs. Neena Raina is concerned, the findings against her under Section 112 of the Customs   Act   as   well as under Section  74 of the Gold (Control) Act are concerned, they ought to be set  aside.   So far as Smt.  Sheela Sumbaly   is concerned,   we   hold   that   the findings  against her Under Section 112 of the Customs Act as well as Section 74 of the Gold  (Control) Act are concerned, they  should  be confirmed.   The  order of confiscation  of the gold under Section 11 l(d) of the Customs Act and Section 71  of the Gold  (Control) Act is also  to  be confirmed.   But so far as the penalties imposed on Smt. Sheela Sumbaly are concerned, we observe that she is not a person alleged, or even suspected,   to  be regularly dealing in smuggled gold and indulging in similar activities.    She is an old  lady, obviously belonging to a respectable family. While the offence itself has been established, we are of the opinion that the circumstances mentioned above warrant a lenient view in  respect  of penalties. We are  satisfied  that the  penalty under Section 112 of the Customs Act imposed on her may be reduced to Rs. 10,000\/- and the penalty under  the  Gold (Control) Act be reduced to Rs. 2.500\/-.\n<\/p>\n
16.    Accordingly, Appeal Nos. C-8\/82-NRB and GC-158\/83-NRB preferred by Smt. Neena Raina are allowed and the penalty imposed on  her is set aside.    Appeal  Nos.  C-6\/82-NRB  and  GC-159\/83-NRB are dismissed except to the limited extent of reducing the penalties on Smt. Sheela Sumbaly to the extent indicated above.\n\n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Mrs. Sheela Sumbaly And Mrs. Neela … vs Collector Of Central Excise And … on 6 March, 1985 Equivalent citations: 1985 (21) ELT 857 Tri Del ORDER V.T. Raghavachari, Member (J) 1. These four appeals arise out of common facts and were, therefore, heard together. The appellant in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-163764","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nMrs. Sheela Sumbaly And Mrs. Neela ... vs Collector Of Central Excise And ... on 6 March, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-sheela-sumbaly-and-mrs-neela-vs-collector-of-central-excise-and-on-6-march-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Sheela Sumbaly And Mrs. Neela ... vs Collector Of Central Excise And ... on 6 March, 1985 - 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