J.K. SHARMA Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is directed against the order of the Central Board of Excise and Customs dated 4 -1 -1982. Since the case had a chequered history, it is but proper that the relevant facts have to be chronologically mentioned to appreciate the factual position and also the pleas advanced by the appellant.

(2.) THE customs authorities seized a post parcel from the appellant's office at Tiruchi on the night of 17/18 -9 -1979 on prior information that the parcel contained contraband goods. After effecting seizure of the parcel, the authorities found the same to contain 158 semi -precious stones totally weighing 720 cts. and on a reasonable belief that the goods were of foreign origin the authorities effected seizure under a mahazar. The goods are valued at Rs. 16,325. The parcel also contained other items with which I am not concerned in the present appeal. Proceedings after due investigation were instituted against the appellant in connection with the seizure of the aforesaid semi -precious stones of foreign origin which eventually culminated in an order of adjudication at the hands of the Asstt. Collector of Central Excise and Customs, Madurai, dated 4 -5 -1981 under which the goods were absolutely confiscated u/s 111(d) of the Customs Act, 1962, the 'Act' for short, read with Section 3(2) of the Imports and Exports (Control) Act, 1947 besides a penalty of Rs. 1,000 on the appellant u/s 112 of the Act. The appellant preferred an appeal as per law before the CBEC which by order dated 4 -1 -1982 remanded the matter to the original authority by setting aside the order of the adjudicating authority on the ground that the same was violative of the principles of natural justice. As against this order of remand passed by the Central Board, the appellant preferred a revision to the Govt. of India which was also confirmed by order dated 28 -10 -1985, the impugned order before it. The appellant thereafter filed a writ petition before the High Court of Madras in WP No. 1398/86 challenging the jurisdiction, authority and power of the Govt. of India to decide the revision application particularly after the constitution of CEGAT in the year 1982 and the High Court by order dated 24 -12 -1992 allowed the writ petition and directed the Govt. of India to forward the concerned papers to the Appellate Tribunal and further directed that the concerned Tribunal "will take on its file the file relating to order No. 29 -A/85 and dispose of the same in accordance with law after giving reasonable opportunity to the petitioner within four months from this date." The records would appear to have been misplaced at the Govt. of India and therefore were not received by the Tribunal and in the meanwhile, the appellant also filed a contempt application in the Madras High Court in WMP No. 28172 of 1994 and the High Court by its order dated 12 -12 -1994 directed the Govt. of India to transmit the papers to the concerned Tribunal within three weeks from the date of receipt of this order. Thereafter, records were received in the Tribunal and the appeal listed.

(3.) SH . Jamal, the learned Counsel submitted that admittedly the goods under seizure were not notified either at the relevant time or at a later point of time and, therefore, Section 123 is not applicable. The Board having given a finding in favour of the appellant that onus is on the department to prove that the goods were of foreign origin should have instead remanding the matter allowed the appeal.