Decided on January 22,1991



S.L. Peeran, Member (J) - (1.) THE appellant has challenged the validity and legality of the Order-in-Original No. 27/Cus (WB)87 dated 26-6-1987 passed by Collector of Customs (Preventive), West Bengal.
(2.) The facts of the case as indicated in the impugned order are that on 9-9-1985 at about 17.30 hours the Customs Officers of Berhampore Customs (Preventive) Unit searched the residential premises of the appellant and recovered from the back side of the premises 648 Kgs. of broken metal scraps of foreign origin, 677.60 metres of synthetic fabrics shirting of Bangladesh origin. The Officers searched the appellant's house. They found in the 'secret' chamber of steel almirah Indian currency of Rs. 1,61,000/-. The appellant was not present in this house when the search took place. His fifteen year old son Noor Islam's statement was recorded, who denied the ownership or knowledge of the goods lying in the backyard. As regards the Indian currency, he stated that the same belonged to his father and he did not know anything about it. He stated that his father did not do any business in foreign goods but he lends money to some local people for doing business. Another person present at the spot, said to be the relative of the appellant, namely, Md. Jahangir was examined by the Officers. He has said that a bundle of foreign clothes and few bag loads of scrap was recovered by the officers. He has stated that he heard the appellant was lending money to the smugglers. He admitted that the appellant was a mason and he employed labourers for building houses and that he was also working under him for the last five years.
(3.) THE Officers issued summons to the appellant who appeared before them on 13-2-1985 and gave answers to the questions posed to him. THE same is recorded in English. He also filed an application dated 11-9-1985 seeking return of the Indian currency. He submitted that he had sold two plots of lands in 1984 and had acquired Rs. 26,000/- as sale proceeds and has earned Rs. 25,000/- in 1984 by selling jute and the balance of Rs. 84,000/- belonged to nine persons who had kept the money with him for safe deposit in the locker of his steel almirah. To the searching questions posed to him by the Officers of the Customs department, he denied the ownership of the goods found behind his residence, he submitted that he did not indulge in smuggling activities and that the premises from where the goods were recovered belonged to one Nivarani Devi. He filed the affidavits of all the nine persons, who had kept their respective sums with him along with the application dated 11-9-1985 seeking return of the Indian currency. After the said examination of the appellant and receipt of his statement and written statement along with the affidavit of the nine persons, the department issued a show cause notice dated 27-2-1986 under Section 111(d), (b) and (p) of the Customs Act, 1962 and sought for his explanation as to why the seized Indian currency and alleged foreign goods should not be confiscated under Section 112 of Customs Act for having committed the contravention of Section 3(1) and (2) of Imports & Exports (Control) Act, 1947, as amended, read with Section 11 of the Customs Act and also to explain as to why penalty should not be imposed upon him.;

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