HARIOM MOUR Vs. COMMISSIONER OF CUSTOMS, SHILLONG

JUDGEMENT

(1.) VIDE the order impugned, the Commissioner of Customs, North Eastern Region, Shillong, has ordered absolute confiscation of Mobile/Cellular Phones, Panaphone Telephones, Panasonic Alkaline Battery, Cover/Jacket of Cellular Phones totally valued at Rs. 1,80,000/ - under Section 111 (d) of the Customs Act, 1962 and imposed a personal penalty of Rs. 50,000/ -on Shri Hariom Mour under Section 112 ibid.

(2.) THE facts involved in the case are that the said goods were recovered from the possession of Shri Hariom Mour in a room of M/s. Hotel Gangotri, Guwahati on 6 -2 -1998. The goods being of foreign origin and the appellant failed to produce necessary documents on demand, the Customs authorities felt that the same have been imported illegally. The same were, therefore, placed under seizure and a show -cause notice was issued to the appellant. In reply to the show cause notice, the appellant contested the value of the goods under seizure but submitted that there were no increminating documents recovered from his room to link him with any smuggling racket from Nepal. He denied the smuggled nature of the goods and hence requested their release. He had also requested to drop the case booked against him. Although personal hearing was granted to him on different dates, the appellants failed to appear himself before the adjudicating authority. However, Shri Pramodh Kr. Mour, the appellants brother, appeared on behalf of Shri Hariom Mour for personal hearing fixed on 26 -8 -1999. During the course of personal hearing, Shri Pramodh Kr. Mour submitted that his brother had confessed everything and had accepted the goods were smuggled from Nepal and knowingly his brother purchased the said goods from a person who came from Siliguri. However, he pleaded a lenient action against his brother. The adjudicating authority holding that the appellant had no valid documents to show licit possession or acquisition of all foreign origin electronic goods involved in this case, ordered absolute confiscation and imposed the said penalty.

(3.) SHRI Aftab Ahmed, ld. Advocate appearing for the appellant, submits that the appellant is the owner of the seized goods except the Motorola Cellular Phone D -160 which as per the Invoice No. LEP/425/97 -98 dated 8 -11 -1997 stands in the name of Shri Sanjoy More but the appellant was using the same. He submits that the Commissioner of Customs has wrongly cast the burden of proof upon the appellant. The authority lost sight of the fact that the seized goods are neither be notified under Section 123 of the Customs Act nor attract the perview of Chapter IVA of the Customs Act. He further submits that the subject seized goods are not in any commercial quantity and as such absolute confiscation is not in keeping with the provisions of the Customs Act. In this connection, he invites attention of the Tribunals Order No. A -911/Cal/98 dated 3 -11 -1998, in the case of Commissioner of Customs (Preventive), W.B. v. Monoj Agarwal wherein the order of absolute confiscation and imposition of penalty were set aside. As this appeal stands on the same footing and the initial burden to prove that the seized goods were not smuggled rests with the Department and in the absence of any evidence that the seized goods are smuggled or contraband in nature, the same are liable to be released inasmuch as the Cellular Phones are allowed import under O.G.L. as per the Exim Policy, 1997 -2002.