D.C. AWASTHI Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE appellant have challenged the correctness and validity of the Order -in -Appeal dated 29 -12 -1989 passed by the Collector of Customs (Appeals), New Delhi by which he has rejected the appeal of the appellant which had arisen before him as a result of remand by the CEGAT, New Delhi vide Order No. A -397/89 dated 27 -9 -1989.

(2.) THE facts of this case are that the Preventive Officers of the Customs, Kanpur noticed an advertisement in daily newspaper 'Dainik Jagran' Kanpur dated 1 -6 -1986 advertising for sale of an Akai VCP alongwith national Video Camera. The officers visited the house of the advertiser, the appellant, on 11 -6 -1986 and searched the same under search warrant. He was not in his house at the time of the search and the search warrant was executed on his wife Smt. Kira Awasthi in presence of two independent witnesses. On search, goods of foreign origin, valued at Rs. 41,000/ - as mentioned in panchnama/recovery memo dated 11 -6 -1986 were recovered. His wife, on demand, could not produce any valid proof showing valid import/acquisition/possession of the goods recovered on the spot and that she admitted that the seized goods had been brought into India by her husband in the month of April, 1986, for which documents showing customs duty were not available with her. Nor any such documents showing legal import were recovered during the course of search or even submitted at a later date by the appellants or his wife. The wife of the appellant, also revealed to the Preventive Officers that the seized goods had been advertised for sale in the said newspaper. The appellant was summoned for giving a statement by the Superintendent (Customs) Central Excise Office, Kanpur on 15 -7 -1986, 25 -7 -1986, 30 -10 -1986 but he did not turn up for that purpose. Therefore, the Asstt. Collector (Customs) on reasonable belief that the goods were of foreign origin, had been brought to India in contravention of the provisions of the Customs Act, issued a show cause notice dated 9 -12 -1986 to the appellant to show cause as to why action should not be taken for contravention of the provisions of Section 11 of the Customs Act, 1962 inasmuch as the goods had been brought inside India in contravention of Order No. 17/55 dated 7 -12 -1955 issued under Section 3(1) of the Import and Export (Control) Act, 1947 as made applicable to the Customs Act, 1962 under Section 3(2) of the said Act. It was stated in the show cause notice that the burden of proof that the seized goods were not smuggled one, lies on the appellant as contemplated under Section 123 of the Customs Act. The statement of appellant's wife and panchnama was relied upon in the show cause notice.

(3.) THE appellant had sent a letter dated 25 -10 -1986 stating that he had met with a road accident on 18 -10 -1986 and he had been admitted in Lakhanpur hospital and that he would attend the office to give statement after being well. As he did not appear the said show cause notice was issued to him. He sent a letter on 9 -12 -1986 reiterating his earlier submission made in his letter dated 25 -10 -1986. Therefore, he was afforded with further chances on 24 -1 -1987 and 14 -4 -1987 to file his reply. As he did not do so, the Deputy Collector passed the impugned Order -in -Original dated 18 -6 -1987 by which he ordered for absolute confiscation of the seized goods under Section 111 of the Customs Act, 1962 and also imposed a penalty of Rs. 1000/ - under Section 112 of the said Act.