Skip to content


Shri Arjun Das Kabari Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)LC563DTri(Delhi)
AppellantShri Arjun Das Kabari
RespondentCollector of Central Excise
Excerpt:
.....on the issue, especially in view of the absence of any markings to indicate the country of origin on the clothes. the zip fasteners could have been cut from used clothes ; (iv) even if they were of foreign origin, there was no evidence that they were smuggled into india ; (d) the circumstantial evidence in the case is not such as would necessarily lead to a conclusion of guilt of the appellant and of the liability to confiscation of the goods ; (e) requiring the appellant to prove by evidence of bills, etc. amounts to placing the onus on him although the goods were not notified goods; (f) the confiscation of the goods and the levy of penalty in the absence of proof of the requisite mens rea was unsustainable ; 3. we have heard the counsel at length on the aforesaid grounds. he.....
Judgment:
1. In this Revision application to the Government of India, transferred to the Tribunal and heard by us as an Appeal, pursuant to Section 131-B of the Customs Act, 1962, the allegations, in a brief compass, were (a) on 8-1-1980, seizure was effected of 1144 pcs. of various types of old and used clothes, without any markings on them, together with 40 pcs. of zip fasteners on the ground that they were all of foreign origin and hence, reasonably believed to have been smuggled ; (b) the Appellant's statement was recorded and a Panchnama prepared and he was made to sign both although he was illiterate and the contents thereof were not read over and admitted by him to be correct ; (c) he, nevertheless, stated that the old clothes were purchased from petty dealers and there was no record of such sales such as bills, etc.; (d) the fact, however, remained that the old clothes bore no markings to indicate their foreign origin ; (e) nevertheless, it was averred in the show-cause notice that the goods in question were brought into India through an unauthorised route in contravention of the provisions in the Notifications issued under Section 11 of the Customs Act, 1962 read with Section 3(1) of the Imports & Exports (Control) Act, 1947 ; (f) in adjudication, the goods were confiscated absolutely and a penalty of Rs. 4000/- was levied ; (g) on an appeal, the Appellate Collector had modified the order in adjudication in (i) affording an option to redeem the goods on payment of Rs. 10,000/- ; (a) the seized goods were neither those notified in terms of Section 123 p,f the Customs Act, 1962, nor did they fall within those specified under Chapter IV of the said Act ; (iii) contrary to the import prohibition contained in the Imports & Exports (Control) Act, 1947, and (iv) the requisite mens rea in terms of Section 112 of the Customs Act, 1962knowledge or reasonable belief that the goods are liable to be confiscated under Section 111 of the Act, lay on the Revenue; (i) the statement of the Appellant was the only evidence in the case ; (ii) his description of the goods as "VEDESHI MAAL" therein is not conclusive on the issue, especially in view of the absence of any markings to indicate the country of origin on the clothes. The Zip fasteners could have been cut from used clothes ; (iv) even if they were of foreign origin, there was no evidence that they were smuggled into India ; (d) the circumstantial evidence in the case is not such as would necessarily lead to a conclusion of guilt of the Appellant and of the liability to confiscation of the goods ; (e) requiring the Appellant to prove by evidence of bills, etc.

amounts to placing the onus on him although the goods were not notified goods; (f) the confiscation of the goods and the levy of penalty in the absence of proof of the requisite mens rea was unsustainable ; 3. We have heard the counsel at length on the aforesaid grounds. He placed reliance on A.I.R. 1971 Tripura 3.

4. In our opinion, all the aforesaid contentions except those relating to proof of requisite mens rea for levy of penalty, had been conclusively refuted in A.I.R. 1974 S.C. 859 (Collector of Customs, Madras v. D. Bhoormull).

5. Construing Section 178-A of the Sea Customs Act (1878), in pari materia with Section 123 of the Customs Act, 1962, their Lordships of the Supreme Court, held inter alia that in a proceeding for confiscation of goods to which Section 178-A of the Sea Customs Act did not apply, (a) it is not necessary that any particular person was concerned with their illicit import; (b) it is enough if the Department furnishes prima-facie proof of the goods being smuggled ; (c) the Department is not required to prove its case with mathematical precision to a demonstrable degree ; all that it requires is the establishment of such a degree of probability that a prudent man, may, on its basis, believe in the existence of the fact in issue ; (d) such prima-facie proof by circumstantial evidence is sufficient to discharge the initial onus on the Department, since it is exceedingly difficult, if not impossible for the Department to prove facts essentially within the knowledge of the opponent and in terms of Section 106 of the Evidence Act, if he fails to explain or establish such facts, an adverse inference can very well be drawn against him ; (e) coupled with the presumptive evidence already adduced by the Department, the adverse inference under Section 106 of the Evidence Act, is sufficient to rebut the initial presumption of the innocence of the person accused of the offence. Accordingly, it was concluded that the Department "would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the facts sought to be proved." 6. Applying the ratio of the aforesaid case to the facts of the instant case, it would appear that the Department had succeeded in discharging the initial onus cast on it to prove that the goods were illicitly imported. The Appellant's own statement coupled with the Panchnama categorically describing the goods in question as "VIDESHI MAAL" and "goods of foreign origin" are sufficient to shift the onus to the Appellant and if he failed to establish by evidence such facts as were exclusively within his knowledge, an adverse inference against him irresistably arises. We have on the record no evidence of (i) retraction of his admission by subsequent notice although it is now alleged that he was illiterate and did know the contents of his statement; (ii) the Panch witnesses disclaiming and disowning their own statement; (iii) purchase from other sources in local markets. In the course of adjudication, the Appellant could not even name the persons from where he had ostensibly purchased the clothes. The names of certain people without any local habitation were furnished to us only in the course of the arguments before us. He named M/s. Malik Brothers, Sadar Bazar, Delhi as the source for the procurement of zip fasteners and promised to produce a bill from them but failed.

In fact, except to say that the entire onus to prove the facts in issue rested exclusively and solely on the Revenue, there has been singularly no attempt even, on the part of the Appellant, to account for the acquisition of the goods or their origin, which were, undoubtedly, within his knowledge.

7. As for proof of mens reaknowledge or reasonable belief that the goods are liable to be confiscated under Section 1ll of the Customs Act, 1962 this was not the first of such cases in which illicit goods in his possession were confiscated. Even as per his own statement, as well as the show cause notice to which there was no reply, in 1973, goods worth Rs. 47,000/- were seized from him and confiscated. He was also penalized to the extent of Rs. 500/-. That he filed an appeal and such appeal was pending on 8-1-1980 when he made the statement is beside the point. He cannot reasonably claim that he was unaware that goods of foreign origin are liable to be confiscated.

8, We see no reason to interfere with the order of the Appellate Collector by which the Appellant had already obtained substantial relief. The Appeal is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //