{"id":37061,"date":"1986-04-30T00:00:00","date_gmt":"1986-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narendra-kumar-h-patel-vs-collector-of-central-excise-and-on-30-april-1986"},"modified":"2016-10-10T11:09:48","modified_gmt":"2016-10-10T05:39:48","slug":"narendra-kumar-h-patel-vs-collector-of-central-excise-and-on-30-april-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narendra-kumar-h-patel-vs-collector-of-central-excise-and-on-30-april-1986","title":{"rendered":"Narendra Kumar H. Patel vs Collector Of Central Excise And … on 30 April, 1986"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Narendra Kumar H. Patel vs Collector Of Central Excise And … on 30 April, 1986<\/div>\n
Equivalent citations: 1986 (8) ECR 330 Tri Delhi, 1986 (26) ELT 108 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 M. Gauri Shankara Murthy, Member (J)<\/p>\n
1. The facts, in a short compass, of this appeal are :-\n<\/p>\n
(a) a notice to show cause dated 24.4.1979 was issued to the appellant alleging inter alia that –\n<\/p>\n
(i) in consequence of information, the officers of the Customs Preventive Unit detected the appellant outside the Railway Station in Jaipur and brought him to their office. On the search of his person various emeralds and rubies of foreign origin aggregating in value Rs. 21,473.50 were recovered;\n<\/p>\n
(ii) the weight, value and origin of the recovered stones were ascertained by an expert in the presence of the appellant and independent witnesses;\n<\/p>\n
(iii) the appellant was unable to produce any evidence whatsoever to prove the licit import of lawful acquisition, possession control or transportation of the said precious stones of foreign origin; j<\/p>\n
(iv) accordingly, they were seized under S. 110 of the Customs Act,, 1962 (hereinafter the Act, for short) in a proper Panchnama in the reasonable belief that they had been illicitly imported into India and have been acquired or transported by the appellant in contravention of the provisions of S. 3(1) of the Imports & Exports (Control) Act, 1947, read with Section 11 of the Act;\n<\/p>\n
(v) in his written statement on that day the appellant voluntarily confessed the recovery, ownership, possession, control and transportation of the stones in question and disclosed that the emeralds were of South African origin and the Rubies and the Blue Saffires were from Burma. He further stated that he purchased them from different persons at different times. The stones were cut and polished at Khambat. He had, however, no voucher bill or any other documentary evidence to establish the legal import of the said stones and their lawful acquisition or possession;\n<\/p>\n
(vi) accordingly it would appear that the aforesaid stones were all imported into India through an unauthorised route in contravention of the aforesaid provisions and are accordingly liable to confiscation under S. Ill of the Act;\n<\/p>\n
(vii) further, it would appear that the appellant was the person concerned in the unlawful acquisition, possession, control, transportation of the goods in question knowingly that the same were liable to confiscation under S. 111(d) of the Act; and the appellant was required to show cause as to why the aforesaid goods should not be confiscated under S. Ill of the Act and why penal action should not be taken against him under S. Ill ibid;\n<\/p>\n
(b) in   his   reply   dated   9.6.79   to  the  aforesaid   notice,  the  appellant submitted inter alia that –\n<\/p>\n
(i) the mere allegation of the appellant’s failure to produce any evidence whatsoever to prove the licit import of the goods in question cannot establish contravention of the Customs regulation of import of the goods from a foreign territory into India. The appellant -was not apprehended in the act of bringing the goods from a foreign territory and there was no evidence whatsoever to indicate that the goods had come from abroad illicitly without observing the Customs formalities and regulations. Indeed, it was established that he was coming to Jaipur from Cambay and not from any place outside India. There was nothing to connect the appellant with the import;\n<\/p>\n
(ii) the onus is on the Revenue to establish that the goods were illicitly imported and that onus cannot be shifted to the appellant. The Revenue has failed to lead appropriate evidence of illicit import;\n<\/p>\n
(iii) there is no indication of the place of origin in the stones themselves and nor can the place of origin be inferred by a mere visual inspection. The Panch witnesses were incompetent to give any opinion in regard to the origin of the stones;\n<\/p>\n
(iv) the purchase of the stones was effected by the appellant from local dealers in Cambay and after cutting and polishing the same they were brought to Jaipur for a better market. There was no import of the rough material from any other market. “The emeralds, rubies and the saffires were manufactured in Cambay by my personal labour and were made saleable by cutting and polishing at Cambay”. There is no evidence that they originated either from Burma or from South Africa. Accordingly, since it is not established that the goods were imported, they are not liable to confiscation and since the appellant’s knowledge that they were illicitly imported is not proved, no penalty can be imposed upon him.\n<\/p>\n
in adjudication it was held that –\n<\/p>\n
(i) the three vouchers produced during the course of the hearing were unreliable, since the appellant had not referred to them earlier in his reply to the notice to show cause. They did not bear any serial number, nor do they appear to be either credit memos or cash memos;\n<\/p>\n
(ii) on the contrary the appellant in his original statement himself had categorically stated that the stones in question were from South Africa and Burma and that he had got no voucher whatsoever about the purchase of the goods;\n<\/p>\n
(iii) accordingly, it is proved beyond doubt that the stones in question were of foreign origin and are, therefore, confiscated absolutely under S. 111 of the Act. He also imposed a penalty of Rs. 5,000\/- on the appellant;\n<\/p>\n
 (d)  in  appeal   it   was  held  that  the  foreign  origin  of  the  stones  is not    in   dispute.   There   is   accordingly   no   satisfactory   evidence regarding their licit import. The order or adjudication was accordingly  confirmed,  but  the penalty  was  reduced to Rs.   1,000\/-.\n \n\n(e)  the instant appeal is the sequel.\n \n\n2.    It   was  urged   in the  course  of  arguments before  me,   inter alia, that -\n  \n\n<\/pre>\n
(a)  admittedly, the goods were not covered under S.   123, or Chapter IV-A of the Act.  Consequently, the burden was on the respondent to  prove  that  the  seized goods were smuggled.  That  burden was not discharged. There was,   indeed, no evidence on record to prove that the seized goods were smuggled;\n<\/p>\n
(b)  nor  was  there  any  finding  in the  orders  below  that  they  were smuggled   or   were   imported   in   contravention   of   any   provision of the Act. The orders do not reveal also any finding with grounds as   to   how   the   goods   were   liable  to  confiscation  under  S.   Ill of the  Act.  As such, the seized goods were not liable to confiscation under any of the provisions of S.  Ill of the Act;\n<\/p>\n
(c)  the order of confiscation was made only on the basis of the fact that the seized goods were of foreign origin and  notwithstanding there was no finding that the seized goods were smuggled;\n<\/p>\n
(d)  the Collector (Appeals) as well rejected the appeal on the ground that the appellant failed to prove satisfactorily the licit importation\/acquisition   of   the   precious   stones.   He   had   not   given   any finding that the seized goods were smuggled and they were, therefore, liable to confiscation under S.  Ill of the Act;\n<\/p>\n
(e)  the   orders   below   are   not   speaking.   They   have   not   considered the   submissions   made  by   the  appellant   in   reply   to  the   notice to show cause and in the appeal and those made during the course of personal hearing;\n<\/p>\n
(f)   merely  by   reason  of  the  goods  being  of foreign origin they  do not become smuggled goods;\n<\/p>\n
(g)  there  is   no  evidence  on  record  to prove that  the appellant  had the  requisite knowledge of the goods being liable to confiscation under the Act and consequently imposition of penalty was illegal;\n<\/p>\n
3.    The  Learned  Counsel  placed   reliance  upon quite a few decisions of  the  courts as well  as those  of the Tribunal   and the Government  of India. They are all enlisted in an annexure to this order.\n<\/p>\n
4.<\/p>\n
(a) The law on the issue of distinction between S. Ill and S. 112 of the Act and the question of burden of proof, regardless of the inapplicability of S. 123 of the Act, is well settled in a number of decisions of the Hon’ble Supreme Court. Nevertheless, difficulties in the appreciation and application of the ratio of the Supreme Court appear to persist, doubtless on account of inadequate cognizance of the basic principles of evidence. What is admitted, need not be proved aliunde. Proof of a fact in issue may be by direct evidence as well as by circumstantial evidence. By circumstantial evidence is meant proof of other relevant facts from which the fact in issue may be inferred. While in criminal proceedings the persuasion of the guilt must amount to such a moral certainty as convinces a tribunal beyond all reasonable doubt, in civil matters, a mere preponderance of probability is sufficient, and the benefit of every reasonable doubt need not necessarily go to the Defendant. In quasi-criminal cases, prima facie doubt is sufficient to shift the onus to the assessee or accused [AIR 1949 Madras 116 – In Narasinga Muthu Chettiar]. There is an essential difference between “burden of proof” as a matter of law and pleading and as a matter of adducing evidence. The burden in the former sense is upon the party who invites a decision on the existence of certain facts which he asserts. That burden is constant and never shifts. But the burden to prove in the sense of adducing evidence (onus of proof) shifts from time to time having regard to the evidence adduced by one party or the other or the inferences that could be drawn from circumstantial evidence or the presumption of fact or law raised in favour of the one or the other. Such shifting of the onus is a continuous process in the evaluation of evidence [AIR 1961 S.C. 1474 – K.S. Nemji & Co. v. Jatashanker Dosa; AIR 1964 S.C. 136 – A. Raghavamma v. A. Chenchamma<\/a>]. “When sufficient evidence either direct or circumstancial in respect of its contention is disclosed by the Revenue, adverse inference could be drawn against the assessee, if he failed to put before the Department, material which, he was in exclusive possession. This process is described in the law of evidence as shifting of the onus in the course of a proceeding from one party to the other. There is no reason why the said doctrine is not applicable to income-tax proceedings.” [AIR 1966 S.C. 1325 – Commissioner of Income Tax v. Best & Co. (Pvt.) Ltd.<\/a>].\n<\/p>\n
(b)  In   cases   where   the   rule   relating   to   burden   of   proof   in   S.    123 of the Act [-  S. 178A of the Sea Customs Act] and the provisions of   Chapter  IV   are   inapplicable,   burden  of  proof   as  a   matter  of law  and  pleading,   doubtless,   rests  on the  Revenue  and   does   not shift.   Nevertheless,   the   onus  of  proof  constantly  shifts from the Revenue to the other party depending on the degree of probative evidence adduced  by  either.  It   is  in this process of  shifting that the onus to prove such facts as are especially within the knowledge of that other party comes to rest upon him.\n<\/p>\n
(c)  In   fact,   it   is  only   on  the  application  of  the  aforesaid  principle of   shifting   onus,   the   rule   relating   to   burden   of   proof   in   S. 106 and the presumption that may be drawn under S. 114 of the Evidence Act, (1871), (apart from the distinction in the nature of confiscation and   the   levey   of   penalty   under   S. 111   and    112   respectively   of the Act) that the Hon’ble Supreme Court in –\n<\/p>\n
(i)   AIR   1966 S.C.   1867 [Issardas Daulatram v.  Union of India<\/a>].\n<\/p>\n
(ii)   AIR    1972   S.C.   2136   [Kanungo  &   Co. v. Collector of Customs, Calcutta.<\/a>\n \n\n(iii) AIR   1974  S.C.   859 [Collector of  Customs  v.   D.   Bhoormull] \n \n\n(iv)   AIR  1975 S.C.  182 [Labhchand v. State of Maharashtra]\n \n\n(v)   AIR   1975 S.C. 2083  [Balumal Damna Das v. State of Maharashtra<\/a>].\n \n\n(vi)   1980   Cencus  85    [State  of   Maharashtra v. Natwarlal Damodarlal Soni<\/a>]\n \n\nhad held, inter alia, that even though neither. S. 123 nor Chapter IV of the Act applied in the facts and circumstances of the case, confiscation as well as levy of penalty, or conviction, as the case may be, can sustain.\n \n\n<\/pre>\n
(d)  It   will be, straightaway,   observed   that   while   the   first   three   of the   aforesaid   cases   were   quasi-criminal   in   nature   being   departmental proceedings, the remaining three were prosecutions launched in criminal  courts. While, therefore,  as discussed supra, preponderance of  probabilities is sufficient and the benefit of every reasonable doubt   need  not   necessarily go to the Defendant in the first three, the accused is entitled to the benefit of any doubt whatsoever in the last three.  Again, in the first three, prima facie proof as  distinguished  from proof  beyond   reasonable  doubt   is  sufficient to   shift   the   onus  to  the   assessee   or  the   accused.   Even   so,   in my   opinion,   the   application   of   the   more   exacting   standards   of proof   in  a  criminal   proceeding  to  the  facts  of  the   instant  case will still result in a decision against the present appellant.\n<\/p>\n
(e)  In the Tribunal as well, we. have precedents in  1983 (12) ELT 849 (Arjan   Das  Kabadi  v.   Collector  of   Central   Excise,   Jaipur);   1984 (16)   ELT   257   [Betha   Pydiraju   v.   Collector   of   Central   Excise, Guntur].\n<\/p>\n
(f)   It is axiomatic in the consideration of precedents that –\n<\/p>\n
(i) the ratio of the decision is of the essence and not every observation found therein or what follows logically from such observations [(1968) 2 S.C.J. 236 – State of Orissa v. Sudhansu Sekhar Misra<\/a>];\n<\/p>\n
(ii) a precedent is in point if there was raised, argued and decided in it in relation to one set of facts before the Court, in relation to a different set of facts of the same general kind. Precisely the same set of facts never recur and it is always a question whether or not the different facts which had arisen in the instant case are sufficiently similar to those of the precedent to make the decision therein a guide for a decision in the case in hand;\n<\/p>\n
(iii) a court when dealing with one or more precedents has to decide whether each such precedent is binding or persuasive and in the latter case the degree of persuasive force and to decide what ratio or principle each precedent yields. Once the precedent is binding, it must be applied or followed regardless of what one may think of the correctness “of the ratio of the precedent.\n<\/p>\n
5. What, then, are the facts in the aforesaid decisions, and how do they compare with the facts in this appeal and what exactly is the ratio that is to be applied?\n<\/p>\n
6.<\/p>\n
(a) In AIR 1966 S.C. 1867, (Issardas’s case), even though there was no direct evidence of illicit import, or as contended for the appellant, there was no material to support the conclusion that the gold was smuggled after restrictions on its import had been imposed, it was held that it could still be deduced or inferred otherwise from the credibility of the story of acquisition, the price alleged to have been paid the conduct of the person from whom the contraband was seized. These were relevant pieces of evidence which bore on the question regarding the character of the gold -whether it was licit or illicit. Significantly the seizure of the gold in this case was long prior to the enactment of S. 178-A of the Sea Customs Act, so that the rule relating to burden of proof contained therein was inapplicable.\n<\/p>\n
(b)  In  AIR   1972  S.C.   2136 (Kanungo &  Co.  v.  Collector of Customs, Calcutta),<\/a>   it   was   contended   before   the   Hon’ble  Supreme   Court that the burden on the Customs authorities had not been discharged and   there   was   no   evidence  that   the   goods   in  question  had   not been  brought   into  India   lawfully.   It   was further urged that  the burden  was  wrongly   placed  on the  appellant   and  that  there was no   evidence  that   the   goods   had   been  imported   in contravention of   law.   [Para    11   of   the   report]-   Repelling   these   contentions the   Hon’ble   Supreme   Court   had   held   that   although   the   burden was  on the  Customs authorities,  they  had discharged that burden by   falsifying   in   many   particulars  the   story   put   forward   by   the appellant.  Equally a false denial could be relied upon by the Customs   authorities   for   the   purpose   of   coming   to   the   conclusion that the goods had been illegally imported.\n<\/p>\n
(c)  In AIR  1974 S.C. 859 (Boormal’s case) –\n<\/p>\n
(i) eight items of goods were discovered, ready packed for despatch. Out of them, the import of four items was totally banned, while the remaining five could not be imported after 1960 save under a licence under S.3(1) of the Imports and Exports Control Order, 1947 [Para 8 of the judgment];\n<\/p>\n
(ii) S. 178A of the Sea Customs Act (- S. 123 of the Act) did not apply to the proceedings;\n<\/p>\n
(iii) the goods were all of foreign origin; (iv) they were not lying exhibited for sale;\n<\/p>\n
(v) Baboothmul from whose custody the goods were recovered disclaimed after ownership and furnished an improbable explanation of the acquisition of possession. At first it was some unknown broker that left them outside the shop. Five days later, he came out with the version that one Bhoormull had left them there and his own partner Indermull knew of it. Indermull was not traceable;\n<\/p>\n
(vi) Later, one person, calling himself Bhoormull claimed the ownership of the goods by letter. Although required to do so, the elusive Bhoormull, who remained behind the scenes, would not disclose the source of the alleged acquisition. Apart from a bare claim, he did not furnish evidence of ownership or juridical possession of the goods. It was “the totality of these circumstances reinforced by the inferences from the conduct of Baboothmull and Bhoormull” that were held “could reasonably and judicially lead one to conclude that these goods had been illicitly imported into Madras – a sea port”. [Para 36 of the report]<\/p>\n
(d)  It was further held in the aforesaid decision that –\n<\/p>\n
(i) proceedings for confiscation of contraband goods are (S. Ill of the Act) proceedings in rem and accordingly, confiscation can be enforced against the goods irrespective of whether the offender is known or unknown. Imposition of penalty is one in personum. Such a penalty can be levied only on the person concerned in any offence described in the relevant provision (S. 112 of the Act); [Para 22 of the report]<\/p>\n
(ii) goods found to be smuggled can, therefore, be confiscated without proceeding against any person and without ascertaining who is their real owner or who was actually concerned in their illicit import – For the levy of penalty, however, it has to be proved further that the person proceeded against was concerned in the commission of the offence with which he is charged;\n<\/p>\n
(iii) while it may be that in a case where S. 178-A of the Sea Customs Act (- S. 123 of the Act) does not apply, the burden of proof that the goods are smuggled lies on the Department, in the appreciation of its scope and effect, regard must be had to other kindred principles, no less fundamental and of universal application. One of them is that the Department is not required to prove its case with mathematical precision to a demonstrable degree. The law does not require the impossible to be proved; [Para 30 of the report],<\/p>\n
(iv) the sufficiency and weight of the evidence is to be considered “according to the proof which it was within the power of one side to prove and in the power of the other to contradict”. Since it is exceedingly difficult, if not impossible for the prosecution to prove facts which are within the exclusive knowledge of the accused, it is not obliged to prove them as part of its primary burden; [Para 31 of the report]<\/p>\n
(v) smuggling is a clandestine conveyance of goods to avoid payment of duties. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. The burden to establish those facts,’ in terms of the principle contained in  Section 106 of the Evidence Act, is cast on the person concerned in it and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution would rebut the initial presumption of innocence and in the result prove him guilty. The (intial) burden on the prosecution may even be considerably lightened by presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of the fact in issue. It will only alleviate the burden to discharge which very slight evidence may suffice; [Para 33 of the report]<\/p>\n
(vi) it is not correct to say that the case is of no evidence. While it is true that no direct evidence of the illicit importation was adduced by the Department, several circumstances of a determinative character which coupled with the inference arising from the dubious conduct of Baboothmull and Bhoormull could reasonably lead to the conclusion that the goods were smuggled; [Para 35 of the report]<\/p>\n
 (vii) “for weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear on the facts elicited”. [Para 36 of the report]<\/p>\n
In the premises, the appeal of the- Collector was allowed, and the adjudication order directing confiscation of the goods confirmed. [Para 15 of the report]<\/p>\n
(e)  In   AIR    1975   S.C.    182   (Labhchand   Dhanpat   Singh   Jain   v.   State of   Maharashtra)<\/a>   once   again   the   Hon’ble   Supreme   Court   laid   it down   that   even   in   despite   of   absence   of   direct   evidence,   the character   of   goods   recovered   as   well   as   the   guilty   knowledge of   the   accused   could   be   inferred   from   circumstantial   evidence including   the   conduct   of   the   accused.    The   suspicious   conduct of   the  accused,  the  incredible  story  he  had  put   forward  of  the source of acquisition, the clandestine and guilty manner in transporting the contraband gold  justify  an inference of its illicit  import and   notwithstanding   the   inapplicability   of   S. 123   of   the   Act   in the   peculiar   facts  and   circumstances   of   the   case,   the   burden of   proving   an   innocent   receipt   lay   upon  the   accused\/appellant and the totality of facts proved was enough to raise a presumption under S. 114 of the Evidence Act that the gold was illegally imported into the country.\n<\/p>\n
(f)   Similarly, in AIR  1975 S.C. 2083 (Balumal’s case), –\n<\/p>\n
(i) there was a search of a certain room divided by partitions into three parts;\n<\/p>\n
(ii) in the central portion, the appellant was found with three other persons;\n<\/p>\n
(iii) part of this portion was enclosed and under lock and key, and it could be opened with one of the keys produced by the appellant;\n<\/p>\n
(iv) eleven wooden boxes tightly packed with cigarette lighters and flints with “Made in Germany”, “Made in Austria”, and “Dubai” marks on them, were discovered inside the locked portion; along with a rent receipt and an electricity bill in the name of the appellant and duly recovered;\n<\/p>\n
(v) in the complaint filed, it was alleged that the goods in question were imported without licence and in contravention of the provisions of the Import Control Order issued under S.3(2) of the Imports and Exports (Control) Act, 1947. “The appellant was prosecuted for offences’ punishable under S. 135(a) and (b) of the Act;\n<\/p>\n
(vi) the accused\/appellant denied being in possession of the offending goods and his explanation was disbelieved. The production of the key (despite initial refusal) proved his exclusive possession of the locked portion of the room with all that was contained therein. Not merely that, there is no doubt that he knew the incriminating nature of the contents of the packages. His case rested on his bare assertion. Although no one came forward to state or allege taht the goods were imported without payment of duty and notwithstanding the inapplicability of S. 123 of the Act, still the appellant had not produced evidence to show that “the goods were legally brought into India;\n<\/p>\n
 (vii) it was contended before the Hon’ble Supreme Court that it was necessary for the prosecution to prove that the goods were smuggled and the appellant was dealing with them knowing them to be smuggled. Mere possession does not enable application of S. 106 of the Evidence Act, when the appellant could not know where the goods came from. Nor was there any evidence’ to show where the goods came from and whether they were duty paid or not. The admissibility of the inscriptions on the boxes were questioned;\n<\/p>\n
(viii) these contentions were repelled and it was held that the failure of the appellant in explaining satisfactorily the innocent receipt of the goods, the inscriptions which showed their origin and the appellant’s conduct including his untruthful denial of their possession, without more, indicated consciousness of their smuggled character as well as the requisite mens rea.\n<\/p>\n
(g) In 1980 Cencus 1985 (State of Maharashtra v. Natwarlal Damodarlal Soni)<\/a> certain gold bars, with foreign markings, in the shape of biscuits of 2 &4 carats’ purity were found, on a search, stitched in a cotton jacket lying in steel trunk underneath some clothes. At the trial the accused denied the charge and stated that the gold was brought into his premises by one Jayantilal Sala and left there in his absence. It was contended before the Hon’ble Supreme Court that S. 123 of the Act did not apply and the burden could not accordingly be placed upon the accused to show that the seized goods are not smuggled. The burden lay heavily on the prosecution and they have miserably failed to produce any evidence to show that the gold in question was smuggled. Repelling these contentions the Hon’ble Supreme Court held that even if S. 123 of the Act could not be invoked, there is still sufficient circumstantial evidence to establish that the gold in question was smuggled. After a review of the earlier case law, it was observed that several tell-tale circumstances including –\n<\/p>\n
(1)  foreign markings on the gold biscuits proclaiming their foreign origin,<\/p>\n
(2)  24   carat   purity   not   available  in  India  at  the  material time,<\/p>\n
(3)  concealment   of   the   gold   biscuits   in   the   folds   of   a   jacket specially prepared for this purpose,<\/p>\n
(4)  the value of the seized gold, and<\/p>\n
(5)  the  conduct   of  the  accused   in  absconding  and  continuing to be a figitive from justice till March, 1962. unerringly pointed to the conclusion that the gold in question was smuggled without payment of duty. The accused was found in conscious possession or keeping of this gold of foreign origin above 15 years after its import into India had been banned, therefore, it was for the accused to show that it was brought to India with the permission of’ the Reserve Bank. The existence of this fact, namely, its import with or without the necessary permission of the Reserve Bank, was entirely a matter within the peculiar knowledge of the accused. It was, therefore, for the accused to rebut the inference which arose under S. 114 of the Evidence Act from the surrounding circumstances of the case that it was contraband gold smuggled into India. Once it is held that the accused was in conscious possession or keeping of this smuggled gold it would follow as a necessary corollary therefrom that he had the requisite mens rea.\n<\/p>\n
7.    Can   it   be   said   in   the   facts   and   circumstances   of   the   instant case that –\n<\/p>\n
(a)  the burden on the Respondent to prove the goods to be smuggled was not discharged or the onus was wrongly placed on the appellant to prove their licit importation\/acquisition\/possession, or<\/p>\n
(b)  there  was  no evidence  on  record to prove the  seized goods were smuggled   or   imported   in  contravention   of   the   law   and   as   such liable to confiscation, or<\/p>\n
(c)  the requisite knowledge  for the  levy  of  penalty  was  not  proved, in the light of the ratio of the aforesaid decision?\n<\/p>\n
8.    The   appellant   had   secreted   the   stones   on  his  person  and  in  a written statement confessed that they were of foreign origin. That statement  was  never  revoked –  not  even in the  reply to the  notice to show cause  nearly  one and’ a half  months later.  Where was the need to prove further, what was admitted? The appellant tries to be too clever by half in ignoring his own admission and pleading rather rhetorically in the reply that  there  is  no  indication  in the  stones themselves that  they  were  of foreign origin and in any view he was not caught in the act of smuggling them into India. Was it really necessary to catch him in the act of smuggling when once the foreign origin for the goods was admitted and, again, was it  not for     him to prove that they were lawfully imported, acquired, transported or were in his possession so that they may escape confiscation and  he  himself   may   not   become  liable  to  a  penalty?     S. 111(d)  of the Act   speaks  of  “any  goods which  are  imported”  and  not   merely  of  “any goods  attempted  to  be  imported”.  It  is  not,  therefore,  as  if   it   is only goods   in  the  course  of   import  or caught  in the act   of  smuggling  that could  be  confiscated  and   not  those  discovered after the  smuggling  was successfully accomplished. Once it was admitted that the. goods were of foreign origin, the burden would necessarily shift to the appellant to prove their lawful import. How did he discharge the onus that was all along on him once he admitted their foreign origin, to prove their lawful import, acquisition or possession? By the belated production of some vouchers – without dates or serial numbers – not adverted to earlier either in the statement or the reply to the notice to show cause and without any explanation as to why they were not so adverted to earlier or for their belated production. There was no attempt made to secure the evidence of those who are alleged to have prepared signed and issued those vouchers, to confirm the appellant’s story of acquisition. It is almost as if the story has to be accepted uncritically without corroboration, after thought, though, it may be. What more evidence is necessary to prove that the goods were smuggled? The burden of innocent or lawful receipt and possession of the stones lay upon the accused once he admitted their foreign origin in terms of the aforesaid decisions of the Hon’ble Supreme Court and he failed to discharge that burden. This was sufficient to indicate not merely that they were smuggled, again in terms of the aforesaid decisions, but the appellant’s consciousness of their smuggled character as well as the mens rea requisite in terms of S. 112 of the Act for the levy of a penalty.\n<\/p>\n
9.    This was the purport of our decision in  1983 (12) ELT 89 (Arjan Das Kabbadi v. Collector of Central Excise, Jaipur) and it was unfortunate that the attention of our Brothers had not been drawn either to the decisions of the Hon’ble Supreme Court or our own when they decided Appeal Nos. 315\/83-NRB or 226\/83-NRB. Nor was the attention of the Tribunal invited to the decisions of the Supreme Court in 1985 (22) ELT 186 (Tribunal). Similarly, the aforesaid decisions of the Supreme Court do not appear to have been cited in 1984 (15) ELT 400; 1984 (15) ELT 91; 1986 (23) ELT 152; 1985 (21) ELT 521; 1983 (11 & 12) ELT 1715. This is apart from the fact that some of those decisions like e.g. 1984 (15) ELT 400 and 1983 ELT 1715 were more concerned with the existence of a reasonable belief for effecting seizure under S. 110 of the Act. The decision in 1983 ELT 1321 was that of the Hon’ble Supreme Court in Ambalal v. Union of India and was distinguished!- in the decisions of the Hon’ble Supreme Court cited hereinbefore. It was Ambalal’s case that was noticed in 1983 ELT 1715 and not the subsequent decisions of the Supreme Court. It was only the decision of the Hon’ble Supreme Court in 1980 Cencus 1985 (State of Maharashtra v. Natwarlal)<\/a> that was noticed in 1986 (23) ELT 42. However, it was held on the basis of the evidence that the accused in that case could not be held to have the requisite mens rea. The confiscation was, nevertheless, it should be noticed, upheld. AIR 1985 Gujarat 324 is a wrong citation. In the decision of the Government of India in Order No. 1374 to 1376\/81, also relied upon, it was held without any discussion of the actual evidence that the department had not been able to adduce adequate circumstantial evidence to justify a finding of the smuggled character of the goods.\n<\/p>\n
10. It stands to reason that I should prefer to follow the decisions of the Hon’ble Supreme court adverted to and discussed hereinbefore rather than the decisions cited and relied upon for the appellant. In the premises, the appeal is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Narendra Kumar H. Patel vs Collector Of Central Excise And … on 30 April, 1986 Equivalent citations: 1986 (8) ECR 330 Tri Delhi, 1986 (26) ELT 108 Tri Del ORDER M. Gauri Shankara Murthy, Member (J) 1. The facts, in a short compass, of this appeal are :- […]<\/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-37061","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nNarendra Kumar H. 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