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Deokinandan Bagaria Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(21)ELT581Tri(Kol.)kata
AppellantDeokinandan Bagaria
RespondentCollector of Customs
Excerpt:
1. shri deokinandan bagaria, 165, central avenue, calcutta-700007 had filed a revision application to the secretary, govt. of india, ministry of finance, dept. of revenue, new delhi being aggrieved from order no.264 of 1980 dt. 31st march, 1980 passed by the central board of excise & customs, new delhi. after the coming into existence of the tribunal, the said revision application stands transferred to tribunal under section 131b of the customs act, 1962 and is being disposed of as an appeal.2. briefly the facts of the case are that on the basis of an information, the premises at 5a muktarambabu st., calcutta under the control and occupation of s/shri bhagawati prasad dudhwala and mahendra kumar dudhwala were searched by the customs officer on 12th january, 1976. in course of the.....
Judgment:
1. Shri Deokinandan Bagaria, 165, Central Avenue, Calcutta-700007 had filed a revision application to the Secretary, Govt. of India, Ministry of Finance, Dept. of Revenue, New Delhi being aggrieved from Order No.264 of 1980 dt. 31st March, 1980 passed by the Central Board of Excise & Customs, New Delhi. After the coming into existence of the Tribunal, the said revision application stands transferred to Tribunal under Section 131B of the Customs Act, 1962 and is being disposed of as an appeal.

2. Briefly the facts of the case are that on the basis of an information, the premises at 5A Muktarambabu St., Calcutta under the control and occupation of S/Shri Bhagawati Prasad Dudhwala and Mahendra Kumar Dudhwala were searched by the Customs officer on 12th January, 1976. In course of the search of the bed room in the said premises occupied by Shri M.K. Dudhwala, 11 pieces of gold sovereigns, 1 piece gold coin with inscriptions, one piece wrist watch of foreign origin, jewelleries studded with diamonds, pearls, precious stones and semi-precious stones were recovered from a steel almirah the key of which was produced by Shri Mahendra Kumar Dudhwala. As no statisfactory explanation or document could be produced in respect of the lawful importation or possession of the goods, these were seized under the Customs Act, 1962 and (Gold Control) Act, 1968. Shri Mahendra Kumar Dudhwala made a statement before the Customs officers on 12th January, 1976 wherein he had claimed that 11 pieces of sovereigns, 1 piece of gold coin and one piece wrist watch belonged to him, his younger sister, younger brother and his son. The remaining items were stated by him to have been given by Shri Deokinandan Bagaria, his maternal uncle, to him in a steel box on 11-1-76 for temporary custody for sale. Shri Bhagawati Prasad Dudhwala also made a similar statement on 15th January, 1976 before the Customs officer. On 31st January, 1976, Shri Deokinandan Bagaria made a statement stating that items no. 4 to 15 of search list in respect of the goods recovered on 12th January, 1976 from the premises under occupation of Shri Mahendra Kumar Dudhwala belonged to his family and himself and all these goods were vested in his son and daughter by virtue of a will made by his adoptive mother Smt. Ramidebi Bagaria. He further stated that all these jewelleries, so far as he could recollect, were declared in the Wealth Tax Returns submitted by the said Smt. Ramidebi Bagaria and the value in these returns was shown as about Rs. 1 to 11/2 lakhs. He had no knowledge as to how his adoptive mother had acquired those jewelleries. Shri Ratan Kumar Krishanpuri of 30, Rameswarmalia Lane, Howrah, made a statement before the Customs Officer on 4th May, 1976 in which he stated that on 11th January, 1976 he was given a packet by Shri Deokinandan Bagaria for being handed over to Shri Mahendra Kumar Dudhwala which he complied with. On 11th July, 1976, Shri Mahendra Kumar Dudhwala and Shri Deokinandan Bagaria were issued notice to show cause why the goods under seizure should not be confiscated under Section 11 l(d) of the Customs Act and why penal action should not be taken against them under Section 112 of the said Act. M/s. Rajesh Khaitan & Co., Solicitors on behalf of Shri Deokinandan Bagaria had inspected the documents. This was followed by a reply dt. 24th July, 1976 to the show cause notice mainly contending that the goods held by Shri Mahendra Kumar Dudhwala on account of Shri Bagaria were mostly from the stock of goods released to Shri Rangalal Bagaria in 1956/ 57 with reference to the Custom House File No. S12 (1V/T )97/56 P and those were declared in the Wealth Tax Returns submitted to the concerned authorities on 26th September, 1975.

Regarding item Nos. 1, 2, 3 of the search list, Shri Bagaria, stated that he had nothing to submit as those goods did not belong to him. In a letter dated 5th August, 1976, Smt. Renu Nathani, wife of Shri Mahendra Kumar Nathani, denied the charges stating that Shri Mahendra Kumar Nathani was not concerned in the matter for being proceeded against under the Customs Act or Gold (Control) Act. Shri Deokinandan Bagaria had placed reliance on reply to the show cause notice. A reference was given to the Wealth Tax Returns and photostat copy of the Valuation Report for the years commencing from 1968-69 to 1972-73. It was further contended that all the items from sr. nos. 4 to 15 of the search list were out of the goods seized in 1956 and released to Shri Rangalal Bagaria in two instalments as per lists 'A' and 'B' at pages 4 and 5 of the reply to the show cause notice. A detailed chart as to correlation of the seized items with the articles seized in 1956 in one hand and with the Wealth Tax Return on the other, was also filed. It was further contended that in the present case particularly as the jewelleries under seizure were old and used, there could not have been any reasonable belief in the mind of the seizing officer that those were made out of smuggled goods. Referring to the will by Smt. Rami Devi Bagaria, Shri Bajoria contended that the onus of proof under section 123 of the Customs Act, 1962, does not rest on the appellant as the goods were not seized from his possession nor he was owner of the goods. According to the will, the wife of Shri Bagaria was the executrix of the will and the articles mentioned in the will were to be bequeathed to the son and daughter of Shri D.N. Bagaria, after discharging all the liabilities under the Income Tax or Wealth Tax Act.

It was further pleaded that so far as the imposition of personal penalty under Section 112 of the Customs Act, 1962 was concerned, the learned advocate had argued on behalf of the appellant that his client Shri D.N. Bagaria has not been shown by the department to have the knowledge or reason to believe that the goods are liable to confiscation under Section 111(d) of the Customs Act, 1962. According to him, the aspect of liability to personal penalty does not get settled in the manner of proof under Section 123 of the Customs Act does. It was argued that Section 112 of the Customs Act, 1962 is not applicable in the present case. The learned counsel on behalf of Shri Mahendra Kumar Nathani had stated that item nos. 1 to 3 of the search list belonged to him and regarding other articles, it was stated that the same belonged to Shri D.N. Bagaria and these goods were sent to him by Shri Bagaria. He further stated that he did not know that to whom the goods belonged. It was contended on behalf of Shri D.N. Bagaria that the items were old and have been retained in their family for quite a long time and the same, therefore, could not be held to be smuggled goods and Section 123 of the Customs Act, 1962 could not be applied to them.

The learned adjudicating authority did not accept the contention of the appellant and held that Section 123 of the Customs Act, 1962 requires furnishing of evidence by the person claiming the goods to prove that the same were legally imported however old that proof may be. In view of this, long possession of the goods by a person or a family does not take the said goods outside the purview of Section 123 of the Customs Act, 1962. A physical examination of the seized goods was done and it was found that item Nos. 1, 2, 3, 5(a), 6(b) and 6(c) of the search list are ornaments as per the definition of Gold (Control) Act, 1968, which definition was adopted in the absence of any definition of the gold article and ornaments under the Customs Act, 1962 and the goods were seized under the Gold (Control) Act and the Customs Act together.

Before an ornament can be called to be a gold ornament, it must be made or manufactured from gold whether or not set with stones or gems. In view of this, item 6(e) though described as one gold ear tops in the valuation list, is not a gold ornament as the diamonds are set on white metal frame. The rod which is behind the setting and screw for fixing to the ear are apparently made of gold but the weight of the same is so small that the same could not be separately valued. The same was, therefore, taken as diamond ornament on white metal. Item No. 7(a) is a pair of gold ear-ring, the diamonds were set on white metal only, the rod and the screw for fixing to the ear were made of gold which, however, was small in weight compared to the item and of inconsequential value compared to the value of the item and the item has also not accepted to be made and manufactured from gold. The learned adjudicating authority had held that the onus cast upon Shri Mahendra Kumar Dudhwala and Shri D. N. Bagaria by Section 123 of the Customs Act, 1962 in respect of items no. 1, 2, 3, 5(a), 6(b), 6(c), 8, 11 and 12 of the search list, was not discharged by them and the aforesaid items were confiscated under section 11 l(d) read with Section 123 of the Customs Act, 1962. The rest of the seized items were released and no personal penalty was imposed. Being aggrieved from the said order, the appellant had filed an appeal to the Central Board of Excise & Customs. The Hon'ble Central Board of Excise & Customs had confirmed the order of confiscation passed by the Additional Collector of Customs, Calcutta and had rejected the appeal. Being aggrieved from the aforesaid order, the appellant has come in appeal before this court.

3. Shri S. Mukhopadhyay, the learned advocate with Shri K. K.Chatterjee, consultant, has appeared on behalf of the appellant. He has reiterated the facts. The learned advocate has referred to the statement of Shri D. N. Bagaria recorded on the 31st January, 1976 which appears at pages 55 to 58 of the paper book. The learned advocate has referred to last para of the appellant's statement which appears at page 58 of the paper book and he submits that a simple reading of the last para shows the financial position of the appellant that he owns big mills and the appellant and his family members duly possess capability to own so much of jewellery. He has also referred to the will of Smt. Kami Devi Bagaria dt. 21st November, 1975 which appears at pages 91-92 of the paper book. The learned advocate has stated that the appellant's financial and business position is very sound and the information to the Customs, may have been lodged by some enemies or some employees. The learned advocate has pleaded that the whole search is illegal and bad in law as the search was without basis. He has also referred to the show cause notice dt. 1st July, 1976 issued by the Asstt. Collector of Customs (Preventive) to the appellant the same appears at page 44 of the paper book. The learned advocate has pleaded that nowhere in the order-in-original, the statement of the appellant has been controverted by the adjudicating authority. The learned advocate has further pleaded that there is no other evidence on record except the alleged information. He has further submitted that the manner of keeping the jewelleries, should be appreciated and there is no element of concealment in keeping the jewellery. In normal life, jewellery is always kept in a safe and the same jewellery was kept in steel almirah due to safety reasons. The learned advocate has referred to para no, 2 of the show cause notice which deals with the ownership of jewellery. As per para no. 2 of the show cause notice, item nos. 1 to 3 of the search list belonged to Shri Mahendra Kumar Dudhwala whereas in respect of the item nos. 4 to 15, the jewellery belonged to Shri Deokinandan Bagaria, the present appellant. The learned Advocate has submitted that the statement of Shri Bhagwati Prasad Dudhwala, father of Shri Mahendra Kumar Dudhwala was recorded on the 15th January, 1976 where Shri Bhagawati Prasad Dudhwala has stated the facts as to the ownership of jewellery. He has referred to para no. 5 of the show cause notice appearing at page 48 of the paper book. Shri Ratan Kumar Kisanpuri, an employee working in the Purchase Department of Shree Hanuman Cotton Mills Ltd. of which Shri Deokinandan Bagaria is one of the Directors, gave a statement. The statement was recorded on 4th May, 1976. In the statement, he had stated that Shri Deokinandan Bagaria in the morning on 11th January, 1976, has given a packet to him to be delivered to Shri Mahendra Kumar Dudhwala. The packet was wrapped in a newspaper. He did not know what was contained in the packet and on 11th January, 1976 when he reported to the office, the Cashier and others told him that he was wanted by Shri Deokinandan Bagaria at his residence. Accordingly, he went to the residence of the appellant and the appellant gave him the packet which was handed over to Shri Mahendra Kumar Dudhwala at 5/A, Muktaram Babu Street, Calcutta by him.

The learned advocate has stated that there is complete corroboration in the statement of Shri Deokinandan Bagaria as well as his employee Shri Ratan Kumar Kisanpuri. He has submitted that in view of the statement, the transfer of jewellery from appellant's house to his nephew's house is duly established. The learned advocate has referred to para nos. 6 and 7 of the show cause notice which appear at page 49 of the paper book. In para no. 6 of the show cause notice, it has been mentioned that the seized goods were weighed at Custom House Chemical Laboratory and valuation was made by the jewellery appraiser on 12th February, 1976 in presence of Shri N. Mukherjee, advocate. The total value of the seized goods .comes to Rs. 14,23,940 and in para no. 7 of the show cause notice, there is a mention that the Solicitors in their letter to the Govt. of West Bengal dated 4th February, 1976 under instruction from their client Shri Deokinandan Bagaria have claimed that the goods i.e., jewelleries and loose diamonds under seizure were once seized by the customs department belonging to Rami Devi Bagaria, the adoptive mother of Shri Deokinandan in 1956 when Bagaria House was searched. The value of the aforesaid jewelleries of said Smt. Rami Devi Bagaria was about 4 lakhs and after necessary investigation, the department released the jewelleries and diamonds and on scrutiny of old records of 1956, it was found that the jewelleries set with diamonds seized on 18th May, 1956 on account of Shri Rangalal Bagaria (husband of Rami Devi) were valued at Rs. 72,000 besides 14 pieces diamonds valued at Rs. 7,400. He has submitted that in the said para of the show cause, the learned Asstt. Collector has mentioned that the particulars and value of the jewelleries/diamond seized in 1956 do not agree with those seized in this case. The learned advocate has pleaded that in the instant case, the valuation is not disputed and the value cannot be a basis for the discharge of onus. The learned advocate has referred to the Search List which appears at page 39 of the paper book. He has pleaded that as per information, the appellant should have been in possession of smuggled gold, but there was no smuggled gold at all rather item no. 4 of the search list is bangles of white metal studded with white stones which were just suspected to be diamond of foreign origin. There is no positive evidence with the revenue that the diamonds are of foreign origin. He has referred to item nos. 5, 6 and 7 of the search list which appears at page 41 of the paper book. The learned advocate has pleaded that all the three items are of white metal and item no. 8 of the search list is of yellow metal rings studded with stones, 3 pcs. (rings studded with one pc. w/stones each suspected to be diamonds of foreign origin). The learned advocate has referred to the valuation report. The learned advocate has further submitted that comparison of pages 39, 40, 41 and 42 with pages 62 and 63 i.e. a comparison of search list and valuation report does show that the valuation has been done and he has further pleaded that the valuation is not disputed. He has referred to para no. 7 of the show cause notice appearing at page 49 wherein it has been mentioned that the jewellery of the appellant is the same which was seized in 1956 and released subsequently. He has also referred to pages 88, 90 and 89 of the paper book which are letter of release dt. 20th July, 1957, list of articles seized in 1955 and a letter dt. 9th July, 1957 written by the Asstt. Collector of Customs to Shri Ranglal Bagaria which contains details of the jewellery and the late Shri Ranglal Bagaria was asked to take necessary steps to take delivery of the jewellery.

He has further submitted that the appellant had duly filed Wealth Tax Returns of the deceased Smt. Rami Devi Bagaria for the assessment years 1966-67, 1968-69, 1969-70, 1970-71, 1971-72 and 1972-73. He has referred to a valuation report dt. 31st December given by Chhotalal Amulakh and Mohanlal. He has pleaded that the valuation report was got prepared for the completion of Wealth Tax assessment. He has pleaded that Smt. Kami Devi Bagaria had died on 2nd December, 1975 and her Wealth Tax Returns for the assessment years 1968-69, 1969-70, 1970-71, 1971-72, 1972-73 with sixteen enclosures were also filed on 26th September, 1975, vide form of acknowledgement of documents nos.

271-306. He has pleaded that the Wealth Tax Return was filed before the death of Smt. Rami Devi Bagaria. He has referred to page 19 of the paper book which is order-in-original passed under the Customs Act and has also referred to order-in-original passed under the Gold (Control) Act appearing at page 125 of the paper book.

The learned advocate has stated that there is no evidence against the appellant on record and the revenue has not been able to establish that the seized goods are of Indian origin or of foreign origin. He has referred to page 27 of the paper book and has submitted that even the learned Addl. Collector of Customs in his adjudicating order has accepted that no evidence is available whatsoever that the goods seized are smuggled goods. He has laid special emphasis on the words : "It is seen from the perusal of the said show cause notice that except for the charge of illegal importation of the goods brought by applying Section 123 of the Customs Act '62, no evidence is available whatsoever that the goods seized are smuggled goods." The learned advocate has stated that the revenue has not disclosed the reasons of their belief. He has referred to the provisions of Section 110 and Section 123 of the Customs Act, 1962. He has pleaded that as per provisions of Section 110, the proper officer should have reason to believe that the goods are smuggled ones and the seizure should be under reasonable belief and the seizure should be done under the Customs Act. He has referred to a judgment of the Hon'ble Allahabad High Court in the case of the Collector of Central Excise, Allahabad v.L. Kashi Nath, Jewellers reported in AIR 1972, Allahabad 231. He has pleaded that it was a case under the Gold (Control) Act where the Hon'ble Court had held that: "The condition precedent for the application of Section 66 is the reasonable belief that the provisions of the Act have been or are being or are attempted to be contravened. The power then extends to the seizure of such gold in respect of which contravention has either been made or is about to be made. The Section does not permit an indiscriminate seizure with a view to fishing out material to form a belief and justify it by reasons culled therefrom. The belief must be of an honest and reasonable person based upon reasonable grounds. It is not a matter of subjective satisfaction." The learned advocate has also referred to affidavit of Shri Mahabir Prasad Saraf, son of Late Lakhmi Narayan Saraf which appears at page 93 and has referred to para no. 4 of the said affidavit where Shri Mahabir Prasad Saraf had deposed that he and his family had very close personal relation with Smt. Rami Devi Bagaria and he often used to go to her residence and had personally attended on all the marriages and other important ceremonies or get together occasions in their family and the deceased lady was very much fond of diamond jewelleries and she also used to get the designs of her jewelleries changed from time to time.

Para nos. 4 and 5 of the affidavit are reproduced as under : "4. That my family and myself had very close personal relation with herself and her family and I often used to go to her residence and had personally attended on all the marriages and other important ceremonies or get together occasions in their family.

5. That I personally know that Smt. Rami Devi Bagaria was very much fond of diamond jewelleries and she also used to get the designs of her jewelleries changed from time to time. I know that lately she had in her possession four/live sets of single diamond necklaces one of which was a double row necklace and also other jewelleries like bangles with big diamonds, big single diamond ear tops which she always used to wear and also had single diamond rings for wearing on all the fingers one of which was a very big pan shape diamond ring.

I had personally seen her wearing one or other of the aforesaid jewelleries on several occasions like marriage of her adopted son, marriage of her husband's brothers' daughters, birth ceremoney of her grand-son and grand-daughter and various other occasions.

That I further know that she was also owning two/three pairs of diamond and diamond set with emeralds ear rings which she also used to wear occasionally." The learned advocate has also referred to the order-in-original which appears at page 29 of the paper book where the adjudicating authority had observed that the : "Wealth Tax Declaration has no relevancy for the subject goods in this case because Wealth Tax Declaration does not give detailed particulars of the goods and secondly declaration under the Wealth Tax does not make the subject goods immuned from confiscation in the event of their being smuggled." He has also referred to page 100 of the paper book which is a copy of the Wealth Tax Return for the assessment year 1968-69 of Smt. Rami Devi Bagaria. The learned advocate has pleaded that the date of seizure was 12th January, 1976 whereas the Wealth Tax Returns were filed on the 26th September, 1975 that is prior to the date of seizure and the receipt from the office of the Wealth Tax Returns appears at page 96 of the paper book. He has also referred to page 38 of the paper book which is the search list. He has referred to page 107 which is the valuation report dated 31st March, 1972 of Chhotelal Amulakh and Mohanlal and has pleaded that item no. (. . .) of the Valuation Report dated 31st March, 1972 appearing at page 107 viz. one necklace set with 45 pcs. diamonds in gold duly tallies with one of the articles of item no. 5 which is 1 pc. necklace studded with white stones suspected to be diamond of foreign origin which appears at page 41 of the paper book. He has referred to page 115 of the paper book which is a comparative chart of the jewellery seized on 12th January, 1976 and 18th May, 1956. He has pleaded that a simple perusal of the comparative chart shows that the items seized on 12th January, 1976 do tally with the items seized on 18th May, 1956. The learned advocate has further pleaded that the weighment of jewellery was done by the Customs authority on the back of the appellant and there is difference in weight of .4%. The learned advocate has pleaded that it is a slight difference and that may be due to inaccurate weighing and that too was done in the absence of the appellant. He has also again referred to page 117 which is the statement showing difference in weight and valuation of the materials when made by different authorities and/or experts at different times.

He has submitted that all the items do tally and there may be slight variation and that happens due to error in human judgment. He has referred to the grounds of revision application (now appeal) and has referred to para (c) which appears at page 9 of the paper book. The same is reproduced as under : "(c) For that the Board erred in holding that the onus under the said Section 123 in respect of the item Nos. 5(a), 6(b), 6(c), 8, 11 and 12 of the seizure list had not been discharged by your petitioner. The Board failed to appreciate that the provisions of Section 123 of the said Act could not be invoked in respect of the said items. There was no material whatsoever before the Customs Officers to entertain any belief that the said six items were smuggled goods. Further and in any event, the Board failed to appreciate that the provisions of Section 123 of the said Act could not be invoked against your petitioner in respect of the said six items as the provisions of the said section can only to the person from whose custody or possession the articles were seized." The learned advocate has referred to a judgment of Hon'ble Supreme Court in the case of Collector of Customs, Madras and Ors. v. D.Bhoormull reported in AIR 1974 S.C. 859 : 1983 E.L.T. 1546 (S.C.) where the Hon'ble Supreme Court had held that : "In such proceeding the burden of proving that the goods are smuggled goods, is on the Department. This initial onus of proof on the department can be sufficiently discharged by circumstantial evidence. The prosecution of 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.

Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are specially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

On the principle underlying S. 106, Evidence Act, the burden to establish those facts is cast on the person concerned 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 or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. 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 or producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.

These fundamental principles, shorn of technicalities, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106, Evidence Act to cases under Section 167(8) of the Act is 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 existence of the facts sought to be proved." The learned advocate has pleaded that there is no element of concealment on the part of the appellant in any way and there is no reasonable belief on the part of the seizing officer in confiscating the goods and burden of proof under section 123 lies on the revenue and the same has not been discharged by the revenue and the same cannot be shifted to the appellant. He has also submitted that the seized jewellery did not belong to the present appellant Shri Deokinandan Bagaria. The jewellery belonged to late Smt. Rami Devi Bagaria and the notice should have been served on the executrix of the will who was representing beneficiaries of the will. He has referred to a judgment of the CEGAT in the case of M/s. Hazari Lal Gouri Shankar, Badaun v.Collector of Central Excise Kanpur reported in 1984 E.C.R. 1620 where the Tribunal had held that : "Show Cause Notice must be issued to the persons claiming ownership of confiscated gold giving an opportunity to establish their claim; hence the point of law as to whether the proceedings were vitiated by failure to give show cause notices is referred to the High Court." Lastly, he has referred to page 117 of the paper book which is statement showing difference in weight and valuation of the materials when made by different authorities and/or experts at different times.

The learned advocate has pleaded that even certain items where the weight did not tally, were released by the adjudicating authority. The learned advocate has pleaded that in view of his arguments, the appeal filed by the appellant should be accepted.

4. In reply, Shri A.K. Chatterjee, the learned Junior Departmental Representative has submitted that Section 123 is fully attracted in this case. He has referred to a judgment of the Hon'ble Mysore High Court in the case of Ganeshmul Channilal Gandhi and Ors. v. Collector of Central Excise & Asstt. Collector, Bangalore, reported in AIR 1968 Mysore 89 wherein the Hon'ble High Court had held that in a seizure under Section 110 of the Customs Act, the belief that the goods proposed to be seized are liable to confiscation under the Act, should be a subjective one and grounds of belief need not be disclosed and they are not subject to judicial review. The learned J.D.R. has stated that the search had taken place under Section 105 of the Customs Act, 1962 and onus is on the appellant to prove that whether the goods are smuggled or not. He has placed reliance on the order passed by the adjudicating authority and the Hon'ble Board of Central Excise & Customs. He has pleaded for the dismissal of the appeal.

5. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that the learned advocate has argued that the weighment of the jewellery was done by the Customs authorities on the back of the appellant. We feel that there is denial of principles of natural justice. The explanation of the appellant was not accepted on the basis of minor discrepancies in the weight of jewellery recorded by Customs authorities and weight recorded by the valuer under the Wealth Tax Act for the purpose of completion of assessment proceedings under the Wealth Tax Act. The whole order is based on the ground of their discrepancies in the weight of jewellery.

The learned advocate had also argued that certain jewelleries were released though there were discrepancies in their weight. In the fitness of things, we hold that there is denial of principles of natural justice. Accordingly, we remand the case to the learned Additional Collector of Customs, Calcutta to make a de novo adjudication after giving proper opportunity to the appellant. We further direct the reweighment of the jewellery in the presence of the appellant or his representative. The appellant is at liberty to produce any other evidence if he so chooses. This court has already held in a number of decisions that where there was denial of principles of natural justice, the appeal was remanded to the adjudicating authority.

A reference may be made to the decision of Shri Aswani v. Collector of Customs reported in 1984 ECR 1177 and in appeal no. CD(T) Cal-84/80 in the case of Kishanlal Fogla v. Collector of Central Excise & Customs.

Since we are remanding the case to the adjudicating authority, we are not going into the merits and other legal issues involved in the case.

We further direct the learned Additional Collector of Customs, Calcutta to readjudicate the matter within one year from the date of this order.


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