(1.) The petitioner in this case - Fancy Crockeries - is a dealer in crockery. It carries on its business in Broadway, Ernakulam. The petitioner states that it is not an importer of foreign crockery but that the foreign crockery was being imported into India until they were banned and that there is a huge stock of foreign crockery available in Bombay and other places. On 25-1-1962 a party of Preventive Officers of the Customs Department, after obtaining a warrant from the District Magistrate, searched the petitioners place of business and seized 84 items of crockeries under a mahazar. It is stated that the goods seized were worth more than Rs. 10,000/-. P. A. Mohammed, who is the managing partner of the petitioner firm gave a statement before the officers explaining that the goods seized formed part of the stock purchased from established firms in Bombay and also from local merchants in the bona fide belief that they were imported before the ban was introduced. He also requested for release of the goods by his letter dated 8-2-1962. Thereafter the petitioner was asked to produce its stock register and bills and they were produced. On 21st March, 1962, a show cause notice was issued by the Assistant Collector of Customs to the petitioner stating that invoices relating to 50 out of the 84 items seized were found not to agree with the goods seized. A reply was sent to the show cause notice. Ext. P.4 is a copy of the same. Together with the reply, seven affidavits from various merchants at Bombay with copies of invoices to prove that the items were imported by them before the ban was introduced were also sent. The Assistant Collector of Customs, after considering the explanation, passed Ext. P. 2 order holding that 22 items were imported in contravention of S.167(8) of the Sea Customs Act and were liable to confiscation. He however, directed their redemption on payment of duty and penalty. The petitioner paid the duty and the penalty and got the goods released. Against Ext. P2 order the petitioner filed an appeal before the Collector of Customs. Ext. P5 is a copy of the memo of appeal. The Collector passed Ext. P3 order dismissing the appeal. The petitioner questions the validity of Exts. P2 & P3.
(2.) The main submission of counsel for the petitioner was that there was absolutely no evidence to show that the goods were imported into the country after the ban was imposed against the importation of these types of goods. The Assistant Collector of Customs after stating the facts says in his order Ext. P2:
(3.) It has been held by this court in 1963 KLT 1107 that the burden of proof in a case like this is upon the Department. The Department must show by evidence that the goods were imported after the ban was imposed. H. Sarawgi v. Collector C.E. & L. Customs (AIR 1962 Assam 39) is a clear authority on the point. S.106 of the Evidence Act is not attracted. (See AIR 1961 SC 264). The order passed by the Assistant Collector of Customs and the order affirming it in appeal by the Collector of Customs would show that these authorities laid the burden of proving the case that the goods were imported before the ban was imposed upon the petitioner. This, I think, is a manifest error of law.