A.K. HAMSA MOHIDEEN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal is directed against the order in Appeal No. C. Cus Nos. 751 and 753/03, dated 28 -11 -2003 passed by the Commissioner of Customs (Appeals), Chennai by which the Commissioner has modified the order -in -original and reduced the penalty on the appellant herein from Rs. 75,000/ - to Rs. 20,000/ -. The original authority has confiscated the goods with option to redeem the same on payment of fine of Rs. 1,50,000/ - besides imposition of penalty of Rs. 75,000/ - on the appellant herein. He has also confiscated the Ambassador Car used for transport of the goods with an option to redeem the same on payment of duty of Rs. 20,000/ -.

(2.) The brief facts of the case are that the Police Personnel attached to B -1 North Beach Police Station, Chennai, have registered a case under FIR No. 111/03, dated 14 -3 -03 and seized various electronics goods such as assorted mobile phones, assorted mobile chargers etc. of foreign origin valued at Rs. 3,76,400/ - (cif) (Market value Rs. 5,64,600/ -) as detailed in the order -in -original, along with vehicle Regn. No. TN -01 J -2868. The appellant herein and the driver of the vehicle Kannabiran who were the occupants of the vehicle were asked whether they had any receipt or bill for the legal possession of the goods for which they replied in the negative. Therefore, they were arrested and produced before the Hon'ble ACMM (EO II) on 14 -3 -03 and were remanded to judicial custody. On the direction of the Hon'ble Court, the seized goods were handed over to the Customs Authorities for further action in the matter in terms of the Customs Act, 1962. The Customs department thereupon deposited the goods in the Customs warehouse for further action. As a follow up action statement was obtained from the appellant herein on 24 -3 -03 wherein he has inter alia stated that he was having one STD booth at Egmore and the goods were purchased by him from one Sujavuthin. He has also stated that he did not have any bills/receipts with him. Statement was also taken from the driver of the car viz. Kannabiran who stated that he owed a car and used to lend it to his friends for their use and in the instant case, he took Rs. 100/ - to drop the appellant in Parrys Bazar and that he has no connection with the goods. It was in these circumstances that show cause notice was issued to the appellant herein and to the other person which culminated in the order of adjudication passed by the original authority as noted above. In the present appeal, I am concerned with the appeal of the present appellant only.

(3.) Shri A. Ganesh, learned Counsel appeared for the appellant and submitted that the goods involved in the present case are electronic goods and are easily available in the market and that these goods are non -notified under Section 123 of the Customs Act, 1962 and therefore, the burden to prove that they are smuggled goods is with the Customs and which burden has not been discharged. He has further submitted that in the instant case, the goods were first seized by the local police personnel who have handed over the goods to the Customs on the direction of the Hon'ble ACMM (EO -II). He has also invited my attention to the judgment of the Hon'ble Apex Court in the case of Gian Chand and Ors. v. State of Punjab reported in 1983 (13) E.L.T. 1365 (S.C.), wherein it has been held that in case of seizure by the local police and later handed over the goods to the Customs, the provisions of the Customs Act, are not satisfied and consequently that provisions cannot be availed of to throw the burden of proving that the goods were not smuggled, on the accused and the accused also knew that the goods were of that character. The learned Counsel also pressed into service various judgments passed by this Bench and also by other co -ordinate Benches of the Tribunal, the Circular issued by the Board on Town seizure vide File No. 4/149/65 -Cus., dated 14 -12 -65, wherein it is clarified that except for commodities which attract the provisions of Section 178A of the SCA or Section 123 of the Customs Act, 1962, the burden to prove that the goods seized are smuggled, is on the Customs authorities. He has, therefore, prayed for setting aside the impugned order and allowing the appeal.