1. This is an appeal filed under Section 129-A(1) of the Customs Act, 1962 by Pir N.S. Bukhari against the order No. 38/Addl. Collr./1982 dated 15.10.82 of the Addl. Collector of Customs, Ahmedabad, confiscating the fabrics and one pocket radio of foreign origin totally valued at Rs. 3490/- under Section 111(d) of the Customs Act. The appellants' Advocate, Shri H.M. Abdullah has explained the facts of the case leading to the search and seizure of the residential premises of the appellant on 8.8.81 by the Customs Inspector and seizure of the articles under confiscation and Indian currency notes of Rs. 59,500/-and Pakistani currency notes of Rs. 10/ -from the appellants' residence. The Advocate had drawn my attention to the panchanama of the seizure to point out that there was no reasonable belief in seizure of the currency notes and the goods under appeal. So far as the fabrics are concerned, he had explained that these were received as gifts by him and the members of his family from various persons who came to visit the shrine of Pir Shah Murad Bukhari Saheb and some of the cloth pieces were offered to the Darguh. Since the appellant was a priest of the Dargah, the offerings were received by him. The Adovate pointed out that the fabrics were not in bulk quantity and they had been received by the appellant in the aforesaid manner from time to time. The crew members of the sailing vessels also came on pilgrimage, and they too gave gifts of cloth to the children of the appellant and made the offerings. The appellant had not purchased these fabrics and therefore, he did not have any vouchers. He further explained that these fabrics were freely available in the market. The Advocate stated that there was no contradiction in the explanations offered by the appellant as made out in the Addl. Collector's order. The appellant had taken, a consistent view in his statement dt. 8.8.81 to the Customs Officer, in his reply to the show cause notice and in his oral submissions before the Addl. Collector. He had repeated the same contention in the present appeal. Therefore, there was no contradiction in the stand of the appellant and the Addl. Collector's findings were without application of mind. The appellant had a big family consisting of 15 members and the fabrics were not excessive for his family. Since these were stored in the appellants' residence there was no contravention of Section 11-G of the Customs Act, as he was not dealing in fabrics. The transistor radio was brought by the appellant's mother in 1973 while returning from Haj and this was given to his children. The appellant was not dealing in contraband goods, and the Advocate therefore requested that the order of confiscation should be set aside and the goods should be released to the appellant.
2. Shri Krishan Kumar has submitted on behalf of the respondent that the fabrics are covered under Section 123 of the Customs Act and this Section has been invoked in the show cause notice issued to the appellant, and therefore, the burden of proof in respect of the fabrics has been shifted on the appellant. The appellant has not produced any evidence to show the legal import of the fabrics in question.
Therefore, their confiscation under Section 111(d) was correct.
Considering the facts of the case, the Addl. Collector had not upheld the charge of contravention of Section IIG and he had not imposed any personal penalty on the appellant. In view of the aforesaid circumstances, Shri Krishan Kumar submitted that the order of confiscation was legal and the same should be upheld.3. The Advocate for the appellant in reply has once again drawn my attention to the statement dt. 8.8.81 of the appellant and the panchnama of the seizure. He pointed out that fabrics were of assorted quality and length and have different uses. It was not possible for the appellant to remember the name of the various persons who gave them as gifts or as offerings. These had been received from time to time over the past few years. The explanation of the appellant was consistent; since he had not purchased them, he could not have any vouchers covering the fabrics and could not produce the same. Accordingly, he requested for mercy.
4. I have examined the submissions of the appellant and the respondent.
I find that the explanation offered by the appellant is consistent and without any contradiction. Considering the facts that the textile fabrics are in different lengths, of different qualities and meant fur different purposes, the explanation offered by the appellant that these were received as gifts and offerings is acceptable. Accordingly, I find that he had discharged the burden cast on him under Section 123 of the Customs Act, There has been allegation that he had been dealing in fabrics or that as a partner of M/s. Bukhari Traders he had indulged in smuggling. Considering his status as a priest of the shrine, the fabrics found with him are not excessive. I, therefore, find that they are not liable to confiscation. As regards the pocket radio, the same is not covered under Section 123 of the Customs Act and there is no proof with the department that the same is smuggled. In view of the aforesaid circumstances, I set aside the order of confiscation passed by the Addl. Collector of Customs and order the release of the confiscated fabrics and transistor radio.