(1.) THIS is an appeal filed by the appellant against the orders passed by the Collector of Customs & Central Excise (Appeals) in Order No. CAL. CUS-714/89 dated 26-4-1989. THIS case pertains to seizure of 500 pieces of zip fasteners and sewing machine needles, seven boxes, each containing 10 gross or 1440 pcs. and 32 pkts. (each packet containing five gross) of pant hooks, which are all of foreign origin valuing at Rs. 7,230/- from the shop premises of the appellant, named and styled as Vijoy Stores, situated at Nandaram Market, Calcutta. The seizure was effected on 31-5-1988 by the officers of the Customs department on a prior information. The shop was in a notified place under Chapter 4A of the Customs Act, 1962. The seized goods namely, YKK Zip Fasteners and the Registers available in the shop were verified. Consequently, 500 pcs. of Zip Fasteners, according to the Officers, were found in excess than the entries made in the Notified Registers. The other two items are not notified. On a reasonable belief they were seized by the Officers. The statement of the appellant was also recorded. Thereafter, show cause notice were issued. The appellant filed his reply and along with the reply produced receipts for the above three items. After adjudication, the impugned order was passed.
(2.) Shri K.P. Dey, learned Consultant for the appellant contended that the YKK Zip Fasteners under seizure are of Indian origin. In this connection, he pointed out that the appellant had produced a receipt issued by Modi Enterprises of 27, Amratala Lane, Calcutta, showing that 400 dozens of Zip Fasteners of Indian origin assembled were sold to him. Shri Dey, therefore, contended that these goods are of Indian origin and invocation of Section 123 of the Customs Act was not correct. He also contended that the department has not discharged their burden and on visual examination the department could not have come to the conclusion that the goods are of foreign origin. In support of his contention, he relied on the following decisions :-
1987 (29) E.L.T. 65 - C.C. &. C.E. v. Shri Balkrishan
1987 (27) E.L.T. 524 - Gudipati Papa Rao v. C., C.E., Guntur
1987 (27) E.L.T. 326 - Kanayialal v. C.C., Bangalore
Shri Dey also relied on the decision of the Orissa High Court reported in 1984 (18) E.L.T. 278 wherein their Lordships relied on the decision of the Privy Council reported in AIR 1939 PC 47. In particular, he referred to Para 12 of the said decision, wherein their Lordships held as follows :-
"As has been observed by the appellate court, in order that a statement would amount to a confession, it must in terms, admit the offence or substantially all the facts which constitute an offence and an admission of a gravely incriminating character would not, by itself, amount to a confession."
The learned Counsel, therefore, contended that the statement of the appellant does not amount to a confession. He also contended that with respect to the sewing needles, he had produced a bill which is found at page 10B of the paperbook. He, therefore, contended that these needles not being foreign in origin and also not being notified items, the department has not discharged their burden. He further contended that with respect to the hooks, the appellant had produced a bill issued by Vijay Stores, which is at page 9 of the paperbook. Shri Dey also contended that the learned Collector (Appeals) was not correct in holding that foreign currency was seized from the appellant. On all these grounds, he contended that the appeal may be allowed.
Shri M.N. Biswas, learned SDR appearing for the respondents contended before me that the YKK Zip Fasteners in bulk was seized from the possession of the appellant and the appellant has given a statement to the effect that these Zip Fasteners did not find a place in the notified Registers. It was his contention that the appellant at no time gave a statement that they were of Indian origin. He, therefore, contended that in view of the fact that bulk Zip Fasteners were found in the premises of the appellant and some of the Zip Fasteners were entered in the notified register and that the appellant having made a statement to the Officers wherein he failed to mention that the goods were of Indian origin, there was clear violation of Section 123 of the Act. He pleaded that these facts had constituted a prima facie case in favour of the department that these are smuggled goods and they having been seized on a reasonable belief that they were imported into the country illegally, the department has discharged their burden. In this connection, he relied on the decision of the Tribunal reported in 1986 (25) E.L.T. 811 in the case of Jain Enterprises v. Collector of Customs. He also contended that the cash memo produced by the appellant was produced only at the time of filing the reply. Therefore, it was contended that this was only an afterthought. Shri Biswas contended that the appellant could not produce any evidence to show that 4300 pcs. of Zip Fasteners were sold out by him. He relied on the decision of the Supreme Court reported in D. Bhoormull's case reported in 1983 (13) E.L.T. 1546 and contended that the department is not required to prove its case with mathematical precision. He, therefore, contended that the appellant had not discharged the burden. He further relied on the decision of this Tribunal in Order No. 418-Cal/90 dated 13-8-1990 in the case of S.P. Daga v. Collector of Customs 1991 (52) E.L.T. 251 (Tri.). With respect to the needles in question, he contended that the appellant had produced an invoice, but that invoice had shown that the same was sold on ex-factory price which indicates that these are of Indian origin whereas the needles seized are foreign in origin. Therefore, he contended that this invoice does not relate to the needles seized in this case. This circumstance coupled with the fact that the appellant could not produce the said evidence at the tune of seizure but submitted the same at a later stage while submitting the reply, clearly goes to show that it was a document manufactured for the purpose of this case and in order to get the appellant absolved from the clutches of law and to absolve his liability. As far as the hooks are concerned, Shri Biswas contended that it is no doubt true that the appellant has produced a bill from Vijay Stores at Nandaram Market. But it was his contention that the seizure was conducted on 13-1-1985 whereas the bill produced related to a date mentioned as 1-6-1988. Therefore, Shri Biswas contended that production of such a bill clearly goes to show that the appellant had manufactured the same at a later date and he had not purchased the goods in question under this bill. He further contended that even though the goods are not notified, the department had prima facie discharged their burden in this case. In this context, he relied on the decision of the D. Bhoormull v. Collector of Customs case (supra) to state that circumstances appearing against the particular appellant can be taken into consideration and they will indicate that the department has discharged their burden. In this connection, Shri Biswas also relied on Section 106 of the Evidence Act and stated that it is for the appellant to state the facts which are within his knowledge and in the light of this well settled proposition of law the department has discharged their initial burden and the appellant has miserably failed to establish that the impugned goods are licitly imported into India and that they are not smuggled in character. Shri Biswas also contended that there is one more circumstance to strengthen the case of the department and the same is to the effect that the goods in question being consumer items were absolutely banned under the relevant Import Policy 1985-88 and even subsequently. Therefore, he contended that the orders passed by the lower authorities are in accordance with the law.
(3.) IN a rejoinder, Shri K.P. Dey stated that the case of D. Bhoormull is not applicable to the facts of this case. He also drew attention of the Bench to the case of Ambalal, referred to in the aforesaid decision of D. Bhoormull v. Collector of Customs. He reiterated his submission that the impugned orders are liable to be set aside and the appeal be allowed. Seeking leave of the Bench Shri Dey invited the attention of the court to an invoice which finds a place at page 10A and contended that under that invoice M/s. Devidayal had imported 6,19,200 pieces of industrial sewing machine needles as per INdent No. 7241/42 dated 12-3-1987 and stated that out of these needles the abovesaid needles in question were sold and the relevant invoice finds a place at page 10B of the paper book.;