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Kanayalal Bhagnani Vs. Collector of Central Excise and - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1983)LC2054DTri(Kol.)kata
AppellantKanayalal Bhagnani
RespondentCollector of Central Excise and
Excerpt:
1. the appeal arises out of and is directed against the order dated 1.8.1982 passed by the collector of central excise and customs, west bengal, calcutta in no. 9/cus/wb/82 by which he directed confiscation of indian currency of rs. 2,86,500/- under section 121 of the customs act, 1962 (hereinafter referred to as "the act") and also imposed a penalty of rs. 10,000/- under section 114 of the act.2. on 17.7.1981, a special patrol party of b.s.f., 95 bn intercepted a truck bearing registration no. osu 1532 near sonpukur wooden bridge, indo-bangladesh bordering area, when 3/4 persons jumped out of the said truck and escaped. the driver and the cleaner were, however, apprehended. on verification, the truck was found to be loaded with textile goods. neither the driver nor the cleaner could.....
Judgment:
1. The appeal arises out of and is directed against the Order dated 1.8.1982 passed by the Collector of Central Excise and Customs, West Bengal, Calcutta in No. 9/CUS/WB/82 by which he directed confiscation of Indian currency of Rs. 2,86,500/- under Section 121 of the Customs Act, 1962 (hereinafter referred to as "the Act") and also imposed a penalty of Rs. 10,000/- under Section 114 of the Act.

2. On 17.7.1981, a special Patrol Party of B.S.F., 95 BN intercepted a truck bearing Registration No. OSU 1532 near Sonpukur wooden bridge, Indo-Bangladesh bordering area, when 3/4 persons jumped out of the said truck and escaped. The driver and the cleaner were, however, apprehended. On verification, the truck was found to be loaded with textile goods. Neither the driver nor the cleaner could produce any documents. Therefore, the Patrol Party made over the truck with the goods as well as the driver and cleaner to the Customs Officers of Ranaghat Preventive Post on 19.7.1981. The Customs Officers seized the goods on the reasonable belief that the goods and the truck are liable to be confiscated under the provisions of the Act. Besides the textile goods certain Bangladesh currencies, some documents, Indian currencies, wrist watches were also seized.

3. On the strength of the documents recovered from the truck the premises of M/s. Continental Carriers were searched on 3.8.1981. One Radio Cassette Recorder and 2 U.S. Dollars were seized since Shri Kalyan Kumar Bhowmick could not produce any document. The search also revealed that Shri Kalyan Kumar Bhowmick had incurred an expenditure for the purchase of a tyre of the truck which was intercepted by the B.S.F. Patrol Party on 17.7.1981.

4. On 18.8.1981, on the basis of certain documents seized from the premises of M/s. Continental Carriers, the Customs Officers carried out search in the house and shop premises of the present appellant, Shri Kanayalal Bhagnani and they seized certain goods of foreign origin and also Indian currency worth Rs. 2,86,500/-. On the basis of the documents and other materials collected from the premises of the appellant and also on the basis of the investigation made thereafter, a show cause notice dated 8.2.1982 was issued to the appellant calling upon him to show cause as to why the goods mentioned in items 1 to 11, 14 & 15 of the search list should not be confiscated for the contravention of the provisions of Sections 11C, 11D, HE and 11F of the Act. The appellant was also called upon as to why a penalty under Section 112 of the Act should not be levied.

5. In reply to the show cause notice the appellant stated amongst other things that the currency notes found in his house were withdrawn from the Bank. Regarding the goods of foreign origin he submitted that those were for personal use of his family members. Therefore, he contended that neither the goods nor the Indian currency, are liable for confiscation and so personal penalty also could be levied against him.

6. During the adjudication proceedings the Collector granted a personal hearing to the appellant. Thereafter on, 27.5.1982, the Assistant Collector of Customs, West Bengal, Calcutta addressed a letter to the appellant informing him that in connection with the seizure of the cash and other things in his house certain evidence is proposed to be used against him and the evidence proposed to be used against him were listed in the letter and the appellant was called upon to make effective representation against his involvement. In this letter the Assistant Collector said amongst other things that the appellant herein was indulging in financing smuggling of textile goods from India to Bangladesh and medicines like Tetracycline and Vitamin B2 from Bangladesh to India in association with some Bangladesh national; that the goods seized from his residence on 18.8.1981 were smuggled into India in violation of Section 3(1) of the Import Export (Control) Act, 1947 and were acquired in violation of the provisions of Chapter IV-A of the Act and that the seized currency worth Rs. 2,86,500/- are un-accounted for money and they appeared to be the accumulated sale proceeds of smuggled goods. Finally, it was said that the appellant was also liable to penalties both under Sections ll4 & 112 of the Act. The appellant appears to have denied all the allegations made against him.

7. After the receipt of the replies to the show cause notices, from the appellant and Shri Kalyan Kumar Bhowmick, the Collector of Central Excise & Customs, West Bengal, Calcutta gave one more personal hearing to the appellant and the appellant appears to have been represented by a Barrister and an Advocate. On consideration of the materials collected during the investigation and after considering the arguments advanced on behalf of the appellant, the Collector as stated earlier, directed confiscation of the Indian currency of Rs. 2,86,500/- on the ground that they represented the sale proceeds of smuggled goods. He, however, released all other articles seized from the residence of the appellant. He also imposed a penalty of Rs. 10,000/- under Section ll4 of the Act. Feeling aggrieved by the order of confiscation and penalty as mentioned earlier, the appellant has come up with this appeal.

8. We heard the arguments on 10.5.1983 and .11.5.1983. Shri M.A.Razack, the learned Advocate for the appellant vehemently) contended that the charge made in the show cause notice dated 8.2.1982 was that the appellant imported by land from foreign territory into India on or before 18.8.1981 through unauthorised route without a valid import licence as required under Import Control Order, 1955 and without a valid permission granted by the Reserve Bank of India under Section 113 of the Foreign Exchange Regulation Act, 1973, and the relevant Notification issued thereunder and, therefore, the seized goods were liable to be confiscated under Sections 111(d) and lll(p). But then the finding of the learned Collector was being altogether different and it is diametrically opposite to the charge. The finding was that the appellant was the financier in the case of attempted export of textile goods. The Indian Currency of Rs. 2,86,500/- was the sale proceeds of smuggled goods. It was contended by Shri Razack that the learned Collector again went beyond what had been stated in the show cause notice and made out a new case against the appellant. It is further urged by Shri Razack that the learned Collector had noticed the infirmity in the show cause notice and, therefore, he adopted an indigenous method and made the Assistant Collector to address a letter dated 27.5.1982 in order to cover up the deficiency in the show cause notice dated 8.2.1982. It is his contention that the letter dated 27.5.1982 cannot be considered as a second show cause notice because this letter was issued subsequent to the hearing by the Collector and after the completion of the personal hearing. Further, though the proviso to Sub-section 2 of Section 110 empowered the Collector to extend the period of six months contemplated under Section 124 on sufficient cause being shown such an extension cannot be given without giving an opportunity to the appellant. It is the contention of Shri Razack that the power under the proviso to Section 110(2) of the Act is a quasi-judicial one and at any rate one requiring a judicial approach and extension order cannot be passed mechanically. Since the appellant has not been given any opportunity before issue of the letter dated 27.5.1982, the said letter cannot be considered as an extended show cause notice and no reliance should be placed on that letter. The next contention of Shri Razack was that this extension was incorrect because the interception took place on 17.7.1981. The premises of M/s.

Continental Carriers were searched on 3.8.1981. On the basis of certain documents seized from the custody of Shri Kalyan Kumar Bhowmick, the residence and the shop premises of the appellant were searched on 18.8.1981. The Department collected information in connection with the attempted export of textile goods carried in the truck in question. The letter dated 27.5.1982 written by the Assistant Collector disclosed that the Department had information that the appellant was the financier for the illegal export and his counterpart in Bangladesh was also known to them. When all these information were with the Department, the Department chose to issue a show cause notice as late as on 8.2.1982 making an allegation that the appellant had only imported the seized goods from foreign territory through an unauthorised route. There was not even a whisper in the show cause notice that the appellant was in any way concerned or connected with the attempted export of the textiles goods found in the seized truck.

Therefore, it is not open to the Department or to the Collector to change their front later and charge him with the attempted export.

Lastly, Shri Razack urged that the currency notes are not 'notified goods'. They do not fall under Section 123 of the Act. The burden of proof of establishing that the currency notes found in the premises of the appellant are the sale proceeds of smuggled goods lies on the Customs Department and the said Department has not placed on record either direct or circumstantial evidence to discharge that burden. The Collector of Customs & Central Excise has proceeded with assumptions and presumptions and therefore, he prayed for setting aside the order of the Collector and for directing release of the currency notes. In this connection Shri Razack pointed out that for the year 1981-82 the appellant's wife had filed an income Tax return and along with the return she had submitted the balance sheet and in that balance sheet she had shown the amount seized by the Customs. The Income Tax Authorities who had also received report from the Customs Department had investigated the matter and they had asked the appellant's wife for a sum of Rs. 31,000/- and odd and this implies that the Income Tax Authorities were satisfied that the cash found was satisfactorily accounted for.

9. Shri A. K. Chatterjee, J.D.R., sought to support the order passed by the learned Collector. He contended that the appellant has been given notice that the huge cash found in his house represents the sale proceeds of the smuggled goods. Therefore the complaint now made is not tenable. The reply sent by the appellant to the show cause notice clearly established that the appellant had full knowledge of the charges against him. Shri Chatterjee further urged that several documents seized from the house of the appellant clearly established that the appellant had close connection with the Bangladesh traders who had visited Bangladesh on several occasions. He did not enter into any trade with any of the Bangladesh traders. The statements of the appellant as well as of his manager established that the goods were transported to the bordering areas of Bangladesh viz., Agartala, Karimpore, Aurangabad. It was further urged that amongst the documents seized from the premises of the appellant there were Bangladesh Hundi, Bangladesh currency. Therefore, it will be reasonable to draw an inference that the appellant had been either engaging himself in smuggling the goods across Bangladesh or financing the smugglers. Shri Chatterjee also contended that according to the Cash book seized from the appellant's shop the cash in hand was only Rs. 1174.54 whereas the cash found in the house was Rs. 2,86,500/- for which the appellant did not give any satisfactory account. In the circumstances, the learned Collector was fully justified in drawing an inference that the cash found in the house represented the sale proceeds of the smuggled goods.

He, therefore, prayed for dismissing the appeal.

10. Having regard to the rival contentions, the points that fall for determination are : (i) whether the appellant had been found guilty of the charge which was not alleged against him in the show cause notice (ii) whether the order passed by the Collector is unjustified on the facts and circumstances of the case and whether the same is required to be interfered with 11. The show cause notice in this case is dated 8.2.1982. The first two pages of this show cause notice is in cyclostyled form. Having regard to the contention of the parties it is considered necessary to set out the salient features of the show cause notice. It is addressed to the appellant as : "Whereas on the evidence hereto annexed it appears that the goods/currencies as shown in the schedule (which were found in your charge) and now under seizure have been imported (by you) by land from foreign territory into India on or before 18.8.1981 through unauthorised route without :- (i) a valid Import Licence as required under Import Control Order, 1955 dated 7.12.1955; (ii) a valid permission granted by the Reserve Bank of India under Section 13(1) of the Foreign Exchange Regulation Act, 1973 and the relevant Notification issued thereunder.

Thus, it appears, the said goods have been imported contrary to the prohibition/restriction imposed under Section 3(1) of the Import/Export (Control) Act, 1947 as amended; 13(1) of the Foreign Exchange Regulation Act, 1973; 11 of the Customs Act, 1962; and the said goods appear to the liable to confiscation under Section lll(d)/. lll(p) of the Customs Act, 1962." 12. In the statement of evidence reference has been made to the seizure of the truck and also the articles seized from the premises of the appellant. Reference was further made to the search conducted in the shop premises. In paragraph 4 it is stated - "The Customs Officers had reason to believe that the goods were smuggled into India in contravention of the provisions of Section 3(1) of the Import/Export (Control) Act, 1947 read with Sections 11, 11-B of the Customs Act, 1962, Section 13(1) of the Foreign Exchange Regulation Act, 1973. They had seized the goods under Section 110 of the Customs Act, 1962 on the reasonable belief that those were liable to confiscation under Section 111(d) & (p) of the Customs Act, 1962. The Indian currency was seized under Section 110 of the Customs Act, 1962 in view of the fact that these were the sale proceeds of smuggled goods and no account could be produced of such huge sum of money which, he admitted was for payment to his wholesalers. So, it was liable to confiscation under Section 121 of Customs Act, 1962." While giving the basis for seizure it is said in the show cause notice 'The goods under seizure are liable to confiscation under Section 111(d) and (p) of the Customs Act, 1962 and the Indian Currency being sale proceeds under Section 121 of the Customs Act, 1962." Shri Bhagnani is the person concerned within the meaning of Section 112 of the Customs Act, 1962.

So in this show cause notice there is no indication whatsoever that the appellant was in any way concerned or connected with the export of goods to Bangladesh. The Sections mentioned are lll(d) and lll(p). Both relate to Import.

13. Now coming to the order of the Collector, in the penultimate para of his order, the Collector stated : 'The next question is regarding the Indian currency of Rs. 2,86,500/- allegedly seized from the residence of Shri Kanayalal Bhagnani, as being the 'Sale Proceeds' of goods smuggled. Shri Bhagnani has claimed that the money was withdrawals from Bank. I have, however, considered the factors discussed herein before which prove that the money is unaccounted for and there is nothing to show either that these were the 'Sale Proceeds' in course of his normal official business. It has been found that bales of sarees were often being sent by him to the bordering areas of Aurangabad and Agartala and there were medicines in bulk, like vitamin B2 and Tetracycline which are very common items of smuggling on the import side from Bangladesh. The seized truck No. OSU 1532 had a secret cavity in its hood. Scrappings and remnants in the cavity, on examination by Forensic Scientists, were found to be Tetracycline. There is another consideration also. Shri Kalyan Kumar Bhowmick is found to be known to Kanayalal Bhagnani in course of the latter's business. Name of Kanayalal Bhagnani appeared in the documents seized from Kalyan Kumar Bhowmick. In course of the seizure, information was gathered that Kanayalal Bhagjiani was the financier in the case of attempted export by the truck and one Sahajan of Luxury, Cloth Store, Dacca as the Bangladesh Counterpart. Name of Sahajan and the telephone number of Luxury House, Dacca appears in the seized records of Kanayalal Bhagnani. Connection of Shri Kanayalal Bhagnani with the goods attempted to be exported by truck is thus established, It is also established that the Indian currency of Rs. 2,86,500/- is the sale proceeds of smuggled goods. I, therefore, order confiscation,of the Indian currency of Rs. 2,86,500/- under Section 121 of the Customs Act, 1962 being the 'Sale Proceeds' of smuggled goods, other goods of small 'quantity recovered and seized from the residence of Shri Kanayalal Bhagnani are ordered to be released. I also impose penalty of Rs. 10,000/- (Rupees Ten thousand only) on Shri Kanaya'al Bhagnani under Section 114 of Customs Act, 1962." 14. The perusal of this order of the learned Collector leaves no doubt In our mind that the finding of the Collector was that the appellant was connected with the attempted export and the Indian Currency found in his residence are the sale proceeds of the clandestine export business. Secondly, the Collector did not find that the appellant had contravened the provisions of Section lll(d) & (p). As a matter of fact, the Collector had nowhere said that the appellant illegally imported the seized articles including the Indian currency through unauthorised route without a valid import licence or in contravention of the provisions of the Import Export (Control) Act, Foreign Exchange Regulation Act and Section 11 of the Customs Act. We are satisfied that the charge said to have been established was totally different from the charge set out in the show cause notice.

15. The next point for consideration is whether the appellant has been prejudicated and whether he did not have sufficient notice of the charge which was held to be proved against him. It is the contention of Shri Chatterjee, 3r. D.R. that in the show cause notice dated 8.2.1982 the appellant was, told in clear and explicit terms that the cash found in his house represented the sale proceeds of the smuggled goods and is liable to be confiscated under Section 121 of the Act. The appellant had understood the said charge and sent a reply explaining the possession of the cash and had also sought to account for the cash.

Shri Chatterjee Further urged that the letter dated 27.5.1982. clearly spelled out that the appellant was being charged for being connected with the attempted export and, therefore, the contention now put forward that the appellant had no knowledge about the charge and he was thereby prejudiced, cannot be accepted.

16. Now it is necessary to examine these arguments of Shri Chatterjee.

We have already referred to the various aspects found in the show cause notice dated 8.2.1982. This show cause notice nowhere indicates that the appellant is charged with the illegal export or in any way concerned or connected with the export of any goods to Bangladesh. On the other hand, the definite charge made against the appellant was that the goods seized have been imported by him from foreign territory into India on or before 18.8.1981 through unauthorised route. In the said circumstances, the contention of Shri Chatterjee that in the show cause notice dated 8.2.1982 the appellant was informed about his being connected with the export cannot be accepted. It is true that in the letter dated 27.5.1982 which Shri Chatterjee contended as the second show cause notice, there is an allegation that the appellant was involved in shady transactions including despatch of sarees to Indo-Bangladesh bordering area viz., Karimpore, Aurangabad and Agartala. It has also been alleged in this letter that the appellant was indulging in and financing for smuggling of textile goods from India to Bangladesh. Now this letter is dated 27.5.1982. It was issued by the Assistant Collector of Customs. The adjudication proceedings had started much earlier to this letter. The appellant was given personal hearing on 26.4.1982.

17. It is after this personal hearing this letter was addressed.

Admittedly the appellant was not informed or was heard before this letter was addressed. In A.I.R. 1972 Supreme Court page 689 (Assistant Collector v. Malhotra) the Hon'ble Supreme Court had held that 'There can be no doubt that the proviso to the second sub-section of Section 110 contemplates some sort of inquiry. The Collector obviously, is expected not to pass extension orders mechanically or as a matter or routine but only on being satisfied that there exist facts which indicate that the investigation could not be completed for bonafide reasons within the time laid down in Section 110(2), and that, therefore, extension of that period has become necessary. He cannot, therefore, extend the time unless he is satisfied on facts placed before him that there is a sufficient cause necessitating extension." The Hon'ble Supreme Court in the above decision held that the power given to the Collector under the proviso was a quasi-judicial one requiring a judicial approach. Consequently, an opportunity of being heard ought to have been given to the respondent before order for extension is made.

18. In the instant case no matrial has been placed before us to show that the Assistant Collector who addressed this letter obtained orders of the Collector or that any material was placed before the Collector for issue of this letter. In the circumstances, we cannot accept the contention of Shri Chatterjee that it is a second show cause notice.

This document, in our opinion, cannot be looked into at all.

19. As stated earlier, the charge against the appellant was illegal import. The finding was that he was connected with the export. One is diametrically opposed to the other. In the circumstances, we cannot but hold that this has prejudiced the interest of the appellant. In this connection, we may usefully refer to the decision of the Gujarat High Court reported in AIR 1972 Guj. page 115 (Motilal v. L.M. Kaul). In that case also, the charge mentioned in the show cause notice was that the person was dealing in goods of foreign origin and the amount in question represented the sale proceeds of such goods but the case found after hearing was that the amount represented the sale proceeds of prohibited articles which was not a recognised port or place for purpose of export. On those facts, the Division Bench of the Gujarat High Court held that prejudice was caused to the appellant as he was debarred of sufficient opportunity to defend himself.

20. Now from the order of the learned Collector, it is clear that his finding was that the cash amount seized from the house of the appellant represents the accumulated sale proceeds of the clandestine export or attempted export. It is this finding which gave jurisdiction to the Collector to order confiscation and levy penalty. Under law, the Collector was required to issue a show cause notice before passing an order confiscating any goods or imposing any penalty. Section 124 of the Act is clear and explicit. It reads : "No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and Provided that the notice referred to in Clause (a) and representation referred to in Clause (b) may, at the request of the person concerned, be oral." 21. We have already pointed out that the show cause notice dated 8.2.1981 set out grounds which has relation to the illegal import and there was no whisper as to the export in the said notice. The only other documents which the department could lay hand on is the letter addressed by the Assistant Collector of Customs, West Bengal, Calcutta dated 27.5.1982. We have referred to this letter and we have held that this letter is not a second show cause notice. We have given our reasons for that conclusion. It is true that there is no limitation prescribed under the Act for issue of the show cause notice contemplated by Section 124 of the Act, but then the nature and contents of the show cause notice shall have to be as stated in that section. The party should be informed in writing of the grounds on which the adjudicating authority proposes to confiscate the goods or impose the penalty. The person should further be given an opportunity of making a representation in writing against grounds of confiscation or imposition of penalty mentioned in this notice. He should be further given a reasonable opportunity of being heard in the matter. In the instant case, the Assistant Collector by his letter dated 27.5.1982 informed the appellant that synopsis of the cases as referred to in the show cause notice memo issued under C. No. VIII(10)146/ CD/II/IMP/CL/81/1768, dated 8.2.1982 in connection with the seizure case mentioned in the subject and the evidence to be used to connect him in those cases are furnished to enable the appellant to make effective representation against his involvement. Strangely, the Assistant Collector did not state in this notice to whom the appellant should make representation, whether it is to the Assistant Collector or to the Adjudicating Authority or some other authority. It is also not stated in this letter that within what time the appellant was required to make his representation? The letter is silent as to whether the Adjudicating Authority proposes to confiscate the cash amount and proposes to impose a penalty. In the absence of these particulars, this letter cannot be considered as a show cause notice contemplated by Section 124 ibid. The question, therefore, that arises is whether the Collector gets jurisdiction to confiscate the seized goods and to impose a penalty without complying with the provisions of Section 124.

Section 124 is a new provision and similar provision was not found in the Sea Customs Act. This section embodies the principles of natural justice. If the mandate of this provision is not complied with, all further proceedings and the imposition of penalty and confiscation order become illegal. In this view of the matter, the order of the Collector shall have to be set aside.

22. Coming to the merits of the case also, we are inclined to think that the materials placed before the Collector are certainly insufficient to arrive at a positive conclusion that the cash amount found in the house of the appellant represents the sale proceeds of the exported or admitted export of textile goods. It is true that the B.S.F. intercepted a truck on 17.7.1981 near Bangladesh Border and seized certain textile goods found inside the truck. Certain incriminating documents were also seized from the truck. On the strength of those documents, search was conducted in the premises of M/s. Continental Carriers on 3.8.1981 and by reason of certain other evidence collected during such search of M/s. Continental Carriers, the house and shop premises of the appellant were searched on 15.8.1981.

After a period of nearly six months show cause notice dated 8.2.1982 was issued to the appellant. If the appellant was, in any way, connected with the admitted export of textile goods, the department would not have failed to level this charge against the appellant in the show cause notice dated 18.2.1981. The department was satisfied at that time that there was no material to connect the appellant with the admitted export of textile goods. The other materials which are against the appellant are : (i) the appellant could not give satisfactory explanation as to the possession of huge Indian currency valued at Rs. 2,86,500/- found in his house; (iii) the two firms belonging to the appellant were found to deal in sarees; and (iv) the appellant used to purchase sarees from Banaras, Bangalore and Bombay and was sending them by Transport Companies to the bordering regions of Bangladesh, such as, Aurangabad, Karimpore and Agartaia.

Copies of challans recovered from the shop reveal that the consignees actually were certain companies and persons of Bangladesh whose telephone numbers and addresses are written down by the appellant in his own hand. The appellant had made several trips to Bangladesh but did not enter into any business transaction. These circumstances and other circumstances, according to Shri Chatterjee, led to an irresistable conclusion that the cash found in the house of the appellant is the sale proceeds of the smuggled goods.

23. Shri Razack, the learned Advocate for the appellant, on the other hand, contended that immediately after the seizure the Customs Authorities intimated the Income Tax Authorities and requested investigation. The Income Tax Authorities did hold an enquiry. The appellant's wife filed a Return for the Assessment Year 1981-82 and had shown the amount seized by the Customs and the Income Tax Authorities finalised the assessment for the year 1981-82 and the income assessed to was only Rs. 35,000/- and thus the Income Tax Authorities were satisfied that the cash found was accounted money. In the said circumstances, Shri Razack urged that no inference could be drawn from the possession of huge cash that it represents the sale proceeds of the smuggled goods.

24. Though we have no definite evidence before us as to whether the Income Tax Authorities have concluded the investigation it may not be unreasonable to draw an inference that the Income Tax Authorities were satisfied about the accountability of the cash or else, they would not have finalised the assessment for the year 1981-82. It is significant to mention that the Customs authorities did not place any material before us to show that the Income Tax Authorities are still investigating. If, prima facie, the huge cash found in the house was accounted to the satisfaction of the Income Tax Authorities then the case of the Customs becomes weak. The other circumstances are not at all conclusive in nature and they can be explained. Not a single instance of the appellant having clandestinely exported or being concerned in the export has been brought to our notice. The so-called sales of sarees are not outside the border but could be the places within the border. To show that those very sarees were exported clandestinely or illicitly there is no evidence. It is true and we are aware that in cases.of illicit import or export it is normally very difficult to have direct evidence of actual commission of or violation of Customs Law. By and large, one has to depend on circumstantial evidence. We are aware of the dictum of the Supreme Court that the department is not required to prove its case with mathematical precision to a demonstrable degree. All that is required is the establishment of such a degree or probability that a prudent man may, on this basis, believe in the existence of the fact in issue. We have, in detail, examied each and every circumstance. Besides the legal infirmity which we have pointed out, the circumstances placed are inconclusive and are certainly insufficient to connect the appellant with the alleged admitted export of textile goods or that the appellant having been in any way concerned with the illegal export. In other words, the department has failed to establish, by satisfactory evidence, the nexus between the huge cash found in the house of the appellant and the illegal export of admitted export by or at the instance of the appellant or the appellant being in any way concerned with any clandestine export. The materials placed may lead to a suspicion that the appellant might have had hand in the smuggling of goods to Bangladesh but then suspicion, however strong, cannot take the place of proof.

25. On careful consideration of all the aspects, we hold that the learned Collector was unjustified in directing confiscation of the cash amount and imposing the penalty. We, therefore, set aside his order and direct that the cash seized from the house of the appellant shall be returned to him.


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