RAVI MITTAL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE issue involved in this appeal filed by Shri Ravi Mittal is whether the Ball Bearing purchased by him from the open market, were smuggled ones/illegally imported into the country.

(2.) SHRI Naveen Mullick, the ld. Counsel, submitted that the appellant is a dealer in Ball Bearings; that he had purchased the Ball Bearings through Dalai on cash payment from the open market in Delhi where the Ball Bearings were freely sold and purchased; these goods did not attract the provisions of Section 123 of the Customs Act and accordingly the onus to prove that the Ball Bearings in question were smuggled into the country was on the Department which had not been discharged by the Department. He relied upon the decision in the case of Sethi Bearing Sales Corporation and Anr. v. C.C., New Delhi, Order Nos. A -75 and 76/87 -NRB, dated 10 -2 -1987 in which it was held that "since Bearings though of foreign origin are thus shown to be freely available in the market and in the absence of presumption as to the illegal import of such foreign bearings the Department should have produced some prima facie evidence of the illegal import of the seized bearings before an order of confiscation thereof under Section lll(d) of the Customs Act could be justified". He also relied upon the decision in the case of Hindustan Bearings Corporation v. C.C.E., 1990 (50) E.L.T. 91 (T) wherein it was held that in absence of clear evidence that goods were smuggled, goods cannot be treated as smuggled goods. He also mentioned that the Commissioner had proceeded on presumption alone as is clear from his findings in the impugned order; that the Commissioner has held that absence of any document evidencing the sale and purchase would lead to presumption that goods were not lawfully acquired and the failure to produce documents, details about acquisition or import established the charge of the impugned goods being of smuggled nature. The ld. Advocate submitted that the Tribunal, in Sethi Bearing Sales Corporation case, supra, has held that these circumstances were not sufficient to establish the fact of illicit import.

(3.) SHRI S. Srivastava, learned DR, submitted that the ball bearings were in commercial quantity valued at Rs. 12,95,310.00. The smuggled nature of the goods could be proved by circumstantial evidences. He relied upon the decision in the case of Rajendra M. Kamdar v. Collector of Customs, 1996 (83) E.L.T. 541 (T) in which the Tribunal held that the Department had discharged its initial burden in respect of the ball bearings seized at Howrah Railway Station. The Tribunal also held that since the appellant has failed to disclose the identity of the person from whom he has purchased the goods and since he has not produced any vouchers or bills for the purchase of the same, which facts are within his knowledge, a presumption can be drawn against him that these are smuggled goods and which was stated by him in the statement. The appellant in the present case did not know the names and address of the Dalals from whom he had purchased the ball bearings. He did not have any bill or document showing origin. The learned DR submitted that the burden of proof has shifted from the Department to the appellant. He relied upon the decision in Shah Guman Mal v. State of Andhra Pradesh, 1983 (13) E.L.T. 1631 (S.C.) in which it was held that it is fundamental rule relating to proof in all criminal or quasi -criminal proceedings that the burden of proving that the goods are smuggled goods is on the Department. But in order to appreciate its scope, due regard must be paid to other kindred principles, one of them being that the Department is not required to prove its case with mathematical precision to a demonstrable degree, i.e., it is nothing more than a prudent man's estimate as to the probabilities of the case. The learned DR also mentioned that the Supreme Court, in the case of Collector of Customs v. D. Bhoormull, 1983 (13) E.L.T. 1546 (S.C.) has held that Department would be deemed to have discharged its burden, if it adduces so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the fact sought to be proved. Reliance was placed on the decision in the case of Betha Pydiraju v. C.C.E., 1984 (16) E.L.T. 257, in which the Tribunal held that even without applying the statutory presumption under Section 123, the claim of the appellant that he is a bona fide purchaser for value without knowing the goods to be smuggled is legally unsustainable.