1. This is an appeal under Sec. 129-A filed by Smt. Lakshmi K. Bhatia against the Order No. S/49-525/82P dt. 17-9-82 of the Appellate Collector of Customs and Order No. S/14-4-520/82 Pint dt. 3-6-1982 of the Asstt. Collector of Customs under which the assorted fabrics worth Rs. 6162 have been confiscated absolutely and the penalty of Rs. 1000 have been imposed on the appellant. The learned Advocate for the appellant has stated that the appellant is an illiterate lady, and the statement recorded by the Customs Authorities under Sec. 108 of the Customs Act on 2-6-1982 is not correct even though it bears the certificate of her younger sister that she has explained the contents to the appellant who accepts the statement as correct. The Advocate has argued that sister is a minor person and she would not understand the requirements or complications of law. She was made to sign the certificate by the Customs Officer. The statement cannot therefore, be accepted as voluntary and correct. In the statement it has been mentioned that the appellant purchased the fabrics from a lady named Smita, whose full name and address she did not know and she has kept the fabrics for sale to the customers. She had no bill for legal import of the goods. Soon after the seizure on 2-6-1982, the Appellants' Advocate had written a letter on 15-6-1982 to the Addl. Collector in which the facts were stated. But the appellant thereafter came to know that the case relating to the seizure of goods had, already been decided by the Asstt. Collector. The order was passed on the grounds that in her statement dt. 2-6-1982 the appellant had waived the requirements for issue of the show cause notice. The Advocate argued that the appellant would not know the implications of this statement, and this statement was recorded by the Customs Officer. He further contended that the present case was not like the one relating to the adjudication case of the baggage of the passenger where on the spot decision is given by the Adjudicating Officer at the request of the passenger. There was no reason for the Customs Officer to obtain a statement from the appellant that she would waive the requirement for the show cause notice and prayed for an expeditious hearing. The Advocate therefore, requested that the orders of the lower authorities passed on such facts were liable to be set aside, and has prayed accordingly.
2. The departmental representative has contended that there was an admission regarding the purchase of the goods by the appellant from a lady, and their sale to the customers. No evidence had been produced to show that the goods had been covered by bills or imported legally. The Appellate Collector had also upheld the seizure and discarded the baggage receipts which were produced subsequently. He further argued that the statement dt. 2-6-1982 was not recorded under duress.
Accordingly, he has requested for dismissal of the appeal.
3. The Advocate has stated in reply that the fabrics were in assorted nature and reasonable quantity. The Advocate's letter dt. 15-6-1982 was not considered by the Adjudicating Officer, even though the order was issued subsequently. The appellant had returned from her foreign trip on 31-5-1982 and the seizure was effected from her premises on 2-6-1982. She had produced her passport showing the date of arrival to the Asstt. Collector, but the Asstt. Collector had not accepted this proof, and the appellants' claim that the goods were brought by her as part of her baggage. Besides, the panch witnesses were dealing in notified goods and they were under the obligation of the Customs Officers. In view of these circumstances, he requested that the goods may be released to the appellant without any fine and the order of penalty should be set aside.
4. I have examined the submissions on both the sides. I find that the learned Advocate's arguments that the confiscated goods are of different varieties and not in commercial quantity is correct. It is possible that the same were brought by her under a free allowance admissible to her on her return to India and on payment of duty. She has also submitted the baggage receipts to cover the goods. On the other hand I find that though the fabrics are covered under Sec. 123 of the Customs Act, the Customs department has not invoked the provisions of Sec. 123 in shifting the onus on the appellant, as no show cause notice was issued by the department. Therefore, the Asstt. Collector's reliance on Sec. 123 in his order is without any legal foundation.
There is no record or mention in the order that the provisions of Sec.
123 were explained and invoked by the Asstt. Collector before he passed the aforesaid order. In this view, Sec. 123 of the Customs Act does not apply to the case. There are other glaring omissions as pointed out by the learned Advocate, like the statement being explained by a minor child, the waiver of the show cause notice in the statement and the expeditious order and non-consideration of the Advocate's letter dt.
15-6-1982 by the Asstt. Collector. I, therefore, see no reasons to justify the confiscation and the order of penalty. Accordingly, I direct that the goods be released to the appellant and the amount of Rs. 1000 paid as penalty be also refunded to her. The appeal is thus allowed.