1. In this Revision application to the Government of India, transferred to the Tribunal and heard by us as an appeal pursuant to Section 131B of the Customs Act, 1962, the facts were : (a) A consignment of 10 drums wrapped in jute cloth was intercepted on 16.12.76 outside the delivery godown of M/s. Amritsar-Bombay Carriers (Regd.), Nabi Karim, Delhi, in the presence of Appellant No. 2 and independent witnesses. On examination it was revealed that (i) they contained citric acid monohydrate granular, made in Belgium; (iii) they were booked by M/s. Pancham Trading Co., Bombay to self; and (iv) they were accompanied with a Bill drawn upon Union Chemical Agency, Katra Ishwar Bhavan, Khari Baoli, Delhi; (b) The Appellant No. 2, partner of Appellant No. 1 claimed ownership, for himself and Appellant No. 1, of the drums but failed to produce any evidence, documentary or otherwise, to show lawful possession of the same or acquisition of the same; (c) The said goods were, therefore, seized under Section 110 of the Customs Act under the reasonable belief that the same were smuggled in contravention of the restrictions imposed on import thereof and were liable to confiscation under Section 111 (d) of the Customs Act; (d) On search of the godown of the first Appellant, 9 more drums of the same material were recovered. They were also likewise seized under the aforesaid provisions; (e) In the statement dated 16.10.76 recorded under Section 108 of the Act, Appellant No. 2 admitted the recovery of 19 drums of citric acid valued at Rs. 30,400/-, claimed their ownership and gave certain particulars about the acquisition of the said drums, which particulars on verification were found to have been false The Appellants also stated that they had purchased the goods through a broker Shyam Kumar of Bombay, whose address he did not know. All these particulars were admitted by the Appellants to be false inasmuch as they gave a different set of particulars of the source when once, on verification, they were found to be false; (f) On the issue of a show-cause notice dated 15.4.77 both the Appellants denied the charges and stated that the goods had been lawfully imported and supplied to them by M/s. Navin Trading Co.
vide their Bill No. 322 dated 28.6.77 and Bill No. 323 dt. 30.6.77.
2. Disbelieving the story given by the Appellants, the adjudication officer confiscated the goods under seizure and levied personal penalty of Rs. 2000/-on the first Appellant and Rs. 1000/- on the second. In appeal the order of adjudication was confirmed. However, the Appellants were allowed to redeem the goods on payment of fine of Rs. 15,000/-.
3. It was contended before us by the learned Advocate appearing for the Appellants, that (a) neither the adjudication order nor the order of appeal refers to any provisions of law under which the goods were confiscated and penalties levied. Consequently, the Appellants were denied an appropriate opportunity for an effective representation; (b) a reference in the show-cause notice to statutory provisions of Section 11 l(d) of the Act did not remedy the situation since the aforesaid provision does not speak of acquisition which was the finding in the appeal; (c) the levy of the penalty was unjustified to the extent illegal acquisition had been considered to be the offence committed; (d) the order relating to levy of penalty for illegal acquisition cannot be separated; (e) there has been no contravention of Imports & Exports (Control) Act, 1947, even on the facts alleged since there has been no specific allegation that the Appellant imported the goods ia question in violation of the Act nor any evidence to that effect; (f) Section 123 of the Customs Act being inapplicable, the burden upon the Department was not discharged by adducing any positive and affirmative evidence.
4. It would appear to us in the facts and circumstances of the case that - (a) admittedly, the Appellant No. 2, a partner of Appellant No. 1, claimed the ownership of the drums in question for himself and Appellant No. 1; (b) even if Section 123 of the Customs Act was inapplicable, it behoved the Appellants to disclose such facts relating to the import, acquisition and possession of the goods in question, as were exclusively within their knowledge, in terms of Section 106 of the Evidence Act, once, the goods were of foreign origin:) (c) when such explanation as was furnished in the statement recorded under Section 108 of the Customs Act, 1962, turned out, on investigation, to be false the Appellants, came up with the story that the goods in question were procured from M/s. Navin Trading Co.
of Bombay and they had put in two bills to support the transaction both dated much after the seizure. While the seizure was on 15.12.76, the bills are dated 28.6.77 and 30.6.77 respectively; (d) the Appellants had, in the circumstances, apart from giving false evidence in a statement made under Section 108 of the Act, fabricated and made use of false evidence, knowing it to be false unhesitatingly; (e) it is not as if the goods in question could be freely imported without a licence; (f) in the premises, it is not difficult to conclude that coupled with the presumptive evidence already adduced, the adverse inference under Section 106 of the Evidence Act is sufficient to rebut the initial presumption of innocence of the Appellants; (g) it is not the case of the Revenue that the Appellants had imported the goods without a licence but that the goods were imported without licence in violation of the prohibition and accordingly they became liable to confiscation under Section 111 of the Act; (h) once this was so, in terms of Section 112 of the Act, whoever acquires possession or is concerned with purchase of the goods becomes liable for penalty; he need not, necessarily, have imported; (i) if the adjudication order had, in substance, made out that the goods are liable to confiscation and the Appellants liable to a penalty, it is difficult to perceive how the Appellants became prejudiced just because the relevant statutory provisions are not mentioned therein or in the order under appeal. It is not as if they were not mentioned in the show-cause notice, prior to the adjudication order; when it may, in appropriate cases, be supposed to have prejudiced the defence; (j) it is nothing short of quibbling on words, if one were to infer that the show cause notice did not imply acquisition while the Appellate Order speaks of acquisition. Even more so, when Section 112, itself, speaks of acquisition of possession and purchase. If, therefore, the goods were liable to confiscation in terms of Section 111 (d) of the Act, the acquisition of possession or purchase (both of which were admitted) of such goods render the Appellants liable to penalties under Section 112 of the Act. In the premises, there is nothing that can be made out of the fact that Section 1ll (d) is silent about acquisition. (k) nor does anything turn upon the contention that illegal acquisition had been considered to be the offence. Reading Sees. 1ll (d) and 112 together, it is manifest that- (i) goods imported contrary to the prohibition contained in any law for the time being in force are liable to be confiscated [Section 111 Id)] and (ii) whoever is concerned in the purchase of such goods or other- wise acguires possession thereof is to be penalised.
5. In the result, we see no merits in the Appeal. As it is, the Appellants seem to have got away with it with a very light penalty. The Appeal is hereby dismissed. Such action, as may be advised, would, it is hoped, be initiated against the Appellants for the offences of giving false particulars in their initial statement notwithstanding Section 108 (3; of the Act and Section 191 of the Penal Code and fabricating false evidence in a judicial proceeding under Section 193 of the Indian Penal Code read with Section 108 (4) of the Act.