MULTANMUL AND COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Central Excise authorities searched the premises of the petitioner herein and seized 19, 700 Gillete Blades. At the time of the seizure, the petitioner made a statement to the effect that the goods were purchased by his firm and he produced a letter dated 20-4-1958 written by one Gevarchand Dharmaji in the letter head of Multanmull & Co., Bombay. On enquiries made by the Customs authorities it was found that Multanmull & Co., was not at all in existence. But the petitioner subsequently produced a copy of original Bill bearing dated 10-4-1958 containing the name of Devichand Dharmji, saying that he purchased the goods from that Company. Subsequently on the date of the enquiry, the petitioner produced another letter to the effect that one Gevarchand of Bombay addressed a letter to the petitioner advising the despatch of 19, 000 blades through one Amichand. THE authorities were not satisfied with the explanation and issued a show cause notice to the petitioner why the goods should not be confiscated and a penalty levied. He submitted his explanation on 7-8-1958. Even on 17-10-1958, the Collector of Central Excise, Madras asked him to produce the original bill on 8-11-1958. THE authorities, still not being satisfied, issued a fresh show cause notice on 4-2-1958. Finally the authorities concerned confiscated the goods and imposed a penalty of Rs. 2, 000 under Sec. 167(8) of the Sea Customs Act, 1878. It is to quash this order, the petitioner has filed this Writ Petition.

(2.) AT the time of the arguments of this Writ Petition the learned counsel appearing for the Respondent did not press for the penalty in view of the Judgment in S.C. Therefore the only question that arises for my consideration is whether the seizure of the goods of the petitioner herein is proper and in conformity with the provisions of the Sea Customs Act, 1878. It is an admitted case that the goods concerned are of foreign origin and are restricted and not prohibited goods. In such a case, the burden of proof is on the Customs authorities. Learned counsel for the petitioner contended solely that the Customs authorities did not discharge the burden of proof and therefore the petitioner is entitled to get reliefs as prayed for in the present Writ Petition. It is true, the burden of proof is to be considered in the present set of circumstances. Burden of proof has to be determined on the s and circumstances of each and every case. Even on the burden of proof, there are four kinds of burden which call for discussion: legal or persuasive burden, evidential burden, provisional burden and the ultimate burden. The evidential burden is also a burden of proof which has the effect of producing sufficient evidence to justify a finding in favour of the party who bears it. It is not necessary that the Department should lead direct evidence to discharge their burden of proof. It can be inferred from the circumstances attending the transaction, from the contradictory statements made by the petitioner at the time of the seizure, from the conduct of the party in dealing with the transaction and also the nature and intricacies of the transaction.

(3.) FROM the facts in the instant case, it is clear that at the time of the seizure, the petitioner gave a statement which was subsequently varied at the time of the enquiry and on investigation made by the Customs authorities, they found that the firm from whom the petitioner is alleged to have purchased the blades were not in existence. The story trotted out by the petitioner in regard to this transaction seems to be artificial and unnatural. Originally these goods were sold by a firm in Madras to Bombay merchant and these goods were sold after a period of one year by the Bombay merchant. The person who sold to the Petitioner i.e., Devichand Dharmajee had purchased in 1957 for a sum of Rs. 3, 552 and he sold it after one year to the petitioner for a sum of Rs. 3, 591 for a small profit of Rs. 39. Even the original bills which are on typed paper look very suspicious. Therefore the material that was placed before the Customs authorities was such that any reasonable person would come to the conclusion that these goods were not purchased by the petitioner in the regular course of business and on the other hand, the whole transaction was tainted with the character of smuggled goods which are admittedly of foreign origin and also restricted goods though not prohibited ones. All that is involved is the priniciple, that the action must be attributable to the petitioner herein, i.e., it must have been done intentionally and not accidentally. Therefore I feel that the Customs authorities have discharged the burden of proof. As I have stated previously it is always not necessary to produce direct evidence to discharge the burden of proof. Burden of proof can be discharged also by the evidential burden, i.e., the burden producing sufficient evidence to justify a finding in favour of the party who is to discharge the burden of proof.