SURINDER KUMAR BHATIA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE three Appeals which arise from a common impugned order viz., Order of the Commissioner of Customs, New Delhi, dated 27 -12 -1996 were heard together as the issues were common. The appellants are in appeal against the penalty of Rs. 50,000/ - each imposed on them as per the impugned order.

(2.) THE facts are that on 10 -10 -1995, fifteen Gunny bundles were seized by the Customs officials from Platform No. 8 of Old Delhi Railway Station in the reasonable belief that they contained smuggled goods. On opening the said bundles it was found that they contained 5,730 cartons of 'Classic' brand of American blend cigarettes and 930 pieces of Tiger brand Torches of foreign origin, collectively valued at Rs. 11,73,900/ -. The three present appellants, who according to the Officers of the Department, were roaming around the bundles in a suspicious manner, were apprehended and interrogated under Section 108 of the Customs Act on the date of the seizure. Appellant Shri Rattan Banik in his statement admitted that six bundles out of the 15 bundles seized containing smuggled cigarettes belonged to him; that he had bought the same from one Sri Surinder Kumar Bhatia of Dimapur; that the said packages were booked from Dimapur; that the cigarettes were smuggled into Dimapur from Burma; that he and two other persons had invested equally in the said cigarettes; that he had taken delivery of three such packets of smuggled cigarettes in the past; that the cost of the cigarettes contained in the packets was approximately Rs. 1,80,000.00; that the cigarettes were sold in Delhi; that he was to earn approximately Rs. 20,000/ - on the deal and that the other person involved viz., Sri Surinder Kumar Bhatia had a shop of Electronic Radios etc., in Dimapur. Appellant Sri Surinder Kumar Bhatia in his statement dated 10 -10 -1995 under Section 108 of the Customs Act stated that he had come to Old Delhi Railway Station to take delivery of four packages of smuggled cigarettes sent by one Sri Pradeep Agrawal of Dimapur; that he was to sell the said cigarettes in the market; that the proceeds of the sale of the cigarettes was to go to Shri Pradeep Agrawal of Dimapur; that he (Shri Surinder Kumar Bhatia) was to earn 2% commission on this deal and that he had taken delivery of smuggled cigarettes sent by Shri Pradeep Agrawal of Dimapur on two occasions previously. Third appellant Shri Sankar Lal Agarwal in his statement under Section 108 of the Customs Act recorded on 10 -10 -1995 inter alia, stated that five packages out of the consignment belonged to him and that the said packages were sent to him by one Shri Shamshul Huq of Dimapur; that in the past also he had taken delivery of five such parcels each on two occasions and he had made payment after selling the cigarettes on a commission of Re.l per bundle of 10 packets of cigarettes. On the basis of further statements given by the three appellants giving more details, a Show Cause Notice was issued to the present appellants as well as to the other persons mentioned in the statements given by the three appellants. The matter was adjudicated after granting personal hearing to the parties resulting in the impugned order.

(3.) BY the impugned order, the Commissioner found that the cigarettes and torches had been imported into India without valid import licence required under Para 156 of the Import and Export Policy, 1992 -97 read with the provisions of Import Trade (Development and Regulations) Act, 1992 and therefore liable to absolute confiscation. He further found that though the goods were not covered by the provisions of Section 123 of the Customs Act and therefore the initial burden to establish an offence in respect of the goods was on the Department, the Department had discharged this burden as there was no document or evidence to show that the goods in question had been purchased or acquired in a legal manner. Since the three appellants had clearly admitted that the goods had been smuggled across the India -Burma border, the offence is clearly established. Further, on the basis of the statements and evidence on record, it was established that appellants S/Shri Rattan Banik, Surinder Kumar Bhatia and Sankar Lal Agarwal were undertaking the job of marketing the snuggled cigarettes and torches to earn commission/profit. Accordingly, the goods were directed to be confiscated absolutely under Section 111(d) of the Customs Act, 1962 and penalties of Rs. 50,000/ - each were imposed on the three appellants before us.