Decided on March 04,1991



T.P. Nambiar, Member (J) - (1.) THE Hon'ble High Court of Calcutta vide Civil Rule No. 12921 (W) of 1983 dated 19-7-1990 and Civil Rule No. 12922 (W) of 1983 dated 19-7-1990 set aside the orders passed by the Government of India in Order No. 14A to 16A of 1981 dated 10-2-1981 as far as these appellants are concerned and directed this Tribunal to hear and dispose of the matter. Accordingly, the appellants in both these appeals filed a common paper-book along with the orders of the Hon'ble High Court and the matter was taken up. Since the matter involved in both these appeals arise out of the same seizure of diamonds, we propose to dispose of these two appeals by this common order.
(2.) The facts of the case are that these two appellants along with another appellant filed three Revision Petitions before the Government of India against a common order of the Central Board of Excise and Customs in Order No. 333 to 338 of 1979 dated 26-11 -1979. By virtue of that order the Board confirmed the orders passed by the learned Collector of Central Excise and Customs, West Bengal, Calcutta in Order No. l/Cus/WB/77 dated 31-1-1977. In terms of that order the diamonds belonging to these appellants were confiscated. The facts in brief are that on credible information received on 31-5-1974 the Customs Officers of Customs Divisional Preventive Unit of West Bengal Collectorate, Calcutta by virtue of a warrant searched the premises of one Shri Rawatmal Agarwal at P-119, New C.I.T. Road, Calcutta. Shri Agarwal and some other persons were there at the time of search. The diamonds shown at Serial No. 9 of the Schedule to the show cause notice i.e. (a) 6 pcs. of diamonds weighing 9 Cts. 60 Cents; (b) 122 pcs. of diamonds weighing 25 Cts. 80 Cents; and (c) 7 pcs. of diamonds weighing 1 Ct. 45 Cents - Valuing Rs. 31,000.00, Rs. 25,000.00 and Rs. 1,500.00 respectively, along with other jewels studded with diamonds, were seized. The appellant, Shri Himatlal D. Shah had claimed these 122 pcs. plus 7 pcs. of diamonds as that of his and the appellant, Shri O.S. Gupta had claimed 6 pcs. of diamonds as mentioned above. The learned Collector held that these were smuggled by Shri Rawatmal Agarwal from Nepal into India and therefore, confiscated the same. The Hon'ble Board confirmed the finding of the learned Collector. The Government of India also confirmed the same. But the Hon'ble High Court had set aside the impugned order of the Revisional Authority.
(3.) THE learned Barrister, Shri S.K. Roy, appearing for the appellants contended before us that Section 123 of the Customs Act, 1962 is not applicable to the facts of the case. He contended that there is no evidence to show that these diamonds are foreign diamonds. He contended that the original report of Shrimati Sudha Phuken, Geologist, Geological Survey of India, was not given to the appellants. It was his further contention that the Director of Central Petrological Laboratory, G.S.I., 27, Chowringhee Road, Calcutta-13, had given a report indicating that the Geologist, Smt. Phuken had opined that these diamonds did not appear to have been cut in India. It was also contended that in the adjudication proceedings, the appellants wanted to cross-examine Shrimati Sudha Phuken; but the same was not allowed to the appellants and no reasons were given for the same. It was also contended that the burden has not shifted on to the appellants to prove that they were not smuggled goods. He, further, contended that the appellants had produced several documents to show that they were licitly obtained by them; but none of these documents were discussed by the authorities below. He, further, pointed out that merely on the ground that Shri Rawatmal at the time of seizure of the goods did not mention the names of the appellants the authorities below held that the appellants are not the owners. Shri Roy, learned Barrister, further contended that when the appellants were required to show cause as to why the diamonds should not be confiscated and when they had shown cause thereof, by producing certain documents in this behalf, the authorities below should have discussed the documents and should have recorded the finding with respect to their documents. In the absence of such discussion, Shri Roy contended, the order passed by the lower authorities should be set aside. It was also pointed out before us that when these documents were produced by the appellants an enquiry was conducted with respect to these documents and the report of that enquiry had demanded by the appellants. But that report was not given to the appellants and without discussing about those reports and enquiry the whole case was decided. It was, therefore, contended that by virtue of Section 114 of the Indian Evidence Act the presumption has to be drawn that if produced those enquiry reports will go against the Department. He also contended that since Smt. Sudha Phuken was not produced for cross-examination an adverse inference has to be drawn against the Department. In support of his contentions he relied on the following decisions : (i) Order No. 359/Cal/83-2174 dated 28-7-1983 passed by the E.R.B., Calcutta in the case of Shri Madan Lal Goenka v. Collector of Customs, Cal; (ii) Order No. 1273/81 of the Government of India on Customs Revision Application dated 5-10-1981 in the case of Shri D.P. Agarwal v. Appellate Collector of Customs, Calcutta; (iii) 1988 (34) ELT 331 in the case of Paras Chand Dhadha and Ors. v. Collector of Customs (Prev.) Bombay; (iv) 1983 (14) ELT 1715 (SC) in the case of Shantilal Mehta v. Union of India and Ors.; (v) 1987 (30) ELT 686 (Bom.) in the case of Sociedade De Fomento Industrial Pvt. Ltd. v. K.C. Lakiri and Anr.,;

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