V.P. Gopalan Nambiyar, C.J.
1. The learned Judge quashed Ex. P 3 order of the Collector of Customs & Central Excise and Ex. P-4 order passed on appeal by the Central Board of Excise and Customs confirming the said order. The writ petitioner Respondent was charged under Section 111(d) of the Customs act read with Section 3(2) of the Imports' and Exports (Control) Act, and for the imposition of penalty, under Section 112 of the Customs Act, for being, concerned in dealing with goods liable to confiscation under Section 111 of the Customs Act. The case against the appellant, briefly stated, was that on 23-3-1966, a party of Customs Officers searched the premises of M/s. M.R. Prabhu & Sons and seized 17 bags of cloves weighing 8,82,550 Kgs. The said cloves were cloves sold by the writ petitioner-respondents to M/s. Prabhu & Sons which the petitioner himself claimed to have purchased on 18-3-1966 from one Shah Prekaji Devichand, Bangalore. At the search on 28-3-1966, 75 bags of nux vomica weighing 5,625 kgs. were also seized, alleging that they were used for concealing the cloves in the course of transportation from Salem. The case of the Customs Department was that the cloves were of Ceylonese origin, or foreign cloves, and were illegally imported by the petitioner from Salem. This case of the Department was sought to be proved by the freshness of the petals of the seized cloves, indicating that they had only been recently plucked; and also by the special brand and aroma etc. of the product, indicating Ceylonese variety. The writ petitioner's case was that these bags had been sold in auction by the Sales-tax Department of Mysore some time in 1964 and had been purchased by Devichand, from whom the petitioner had purchased the commodities on 18-3-66. The case of the Department and the case of the writ petitioner had been correctly set out and noticed both in Ex P-3 order of the first Authority, the Collector of Excise; and in Ex. P-4 order of the Appellate Authority, the Central Board of Revenue. After noticing the case of the Department and the defence, both the orders had proceeded to discuss the evidence in support of the case. Ex. P-3 order for instance stated in paragraph 17 that it was ascertained from the commercial authorities in Madras that two lots of 20 bags of cloves sold to Shah Pramaji Devichand belonged to a consignment of 60 bags intercepted by the Sales-tax Authorities at Hosur on 12-12-1964 and auctioned by them on 17-8-1964. It was understood that these bags were of 60 Kgs. each, and the cloves were packed in polythene bags, and covered by gunny bags. The lots were marked on the bags, and two lots, Nos. 31 to 40 and 41 to 50 were purchased by Shah Devichand Pramaji. The bags were wet, and smeared with mud, at the time of seizure. In paragraph 18 it was noticed that the Department's investigation disclosed that the seized cloves were of Ceylon origin and were fresh imports, rich in oil compared to other varieties, with strong aroma and the petals intact. The goods were estimated to be not more than six months old. Samples were shown to persons in the trade and the planters of cloves and their opinion also confirmed to the effect that the cloves were of foreign origin and of recent crop. The total weight of the cloves seized was 882.550 kgs. and the bags were of varying weights. The cloves were packed in gunny bags only and there were no polythene bags. The Collector of Customs issued show cause notice to P.A. Abubacker, M.R. Prabhu, M. Moideen and C.V. Ranganathan. Their replies were dealt with. The depositions of the witnesses, and in particular of Sri Devichand, are dealt with from paragraph 31 onwards, Shri Devichand's depositions being dealt with in paragraph 33. In paragraph 35 the Collector noticed that the auction memo issued by Devichand was dated 18th March 1966, whereas, Abubacker through broker Narayanan made a deal a week earlier offering to make a firm commitment for sale of 750 Kgs. at Rs. 32 per kilogram. The Collector recorded that it was clearly stated by Shri Devichand that he was approached by four persons including one Malayalee for purchase of cloves; that Shri Abubacker stated that he had bought 17 bags of cloves at the rate of Rs. 1,400 per bags and that he entrusted the bills and the goods to despatch to Salem by lorry. Noticing the evidence of these witnesses, the Collector, recorded that he could not accept the stand taken on behalf of the writ petitioner, and could not place any credence on the auction vouchers put up by Abubacker. There was the evidence of the Commercial Tax Officer, Hosdrug Check Post, that no cloves were transported from Bangalore during the material time. After discussing the evidence the conclusions were recorded in paras 38, 39 and 40 that Shri Abubacker and party had either collected the cloves from Tiruchirappally or other sources and that there was no official source for the same. He was given opportunity to produce the document of regular import, but failed to do so. On these facts, the cloves were held to be smuggled and the nux vomica bags which were used to conceal the smuggled goods were held liable to confiscation under Section 111 of the Act. This is the gist of the Collector's order. Ex. P-4 order again discusses the evidence and the circumstances. In para 4 it noticed that the Collector has disbelieved the transporting of cloves from Bangalore to Salem and also the Sale of cloves by Shri Premaji Devichand to the appellant. It noticed also that there was no evidence that the cloves were transported to Salem. The appellate Authority refused to place reliance on the bills produced by the appellant as they did not show the purchaser's name and address, the total weight or such other details. It was thus after discussing the evidence fully that the conclusion of the Collector recorded in Ext. P-3 order was confirmed.
2. We are unable to see how, in the circumstances, the learned Judge could have quashed Exts. P-3 and P-4 orders on abstract notion that the burden of proof was on the Department and had been wrongly laid on the delinquent. This was, the only ground on which the learned Judge quashed exts. P-3 and P-4 orders, viz., the goods not being of the enumerated variety under Section 123(2) of the Act, the burden of proof was on the Department to show both the foreign origin and the illicit transport of the goods. But we have noticed that Exts. P-3 and P-4 orders were rested on a discussion of the evidence and circumstances and not on any abstract notions of burden of proof. The scope of this doctrine of burden of proof and its applicability to adjudications under the Customs Act have recently been examined and clarified by the Supreme Court in Collector of Customs, Madras v. D. Bhooramal - AIR 1974 SC 859. The decision is quite revealing and instructive. In the light of the principles laid down by the Supreme Court and on our analysis of the orders of adjudication Exts. P-3 and P-4 we are unable to sustain the reasoning and the conclusion of the learned Judge.
3. We allow this appeal, set aside the judgment of the learned Judge and direct that O.P. No. 2277 of 1974 will stand dismissed. We make no order as to costs.