Judgment:
1. This appeal has been preferred by the appellants against the impugned order-in-original of the Commissioner of Customs dated 2/-2-2001 vide which he had ordered absolute confiscation of the goods valued at Rs. 1,50,11,900/- and imposed penalty of Rs. 10 lakhs on the appellants.
2. The facts leading to the filing of the present appeal may briefly be stated as under : Acting on a specific information, officers of the Headquarters, Customs Preventive Branch, New Customs House, New Delhi, conducted search at the office-cum-godown of the appellants who common carriers, on 13-11-1999 in accordance with law in the presence of Shri Darshan Lal, Loading Assistant and two independent witnesses. As a result of that search, 82 packages which contained 58256 pcs. of ball bearings of various foreign make and brand valued at Rs. 1,50,11,900/- were recovered. On demand, Shri Darshan Lal, could not produce any document, other than the GRs and invoices for the lawful import/acquisition/possession of those ball bearings and as such the same were seized under Section 110 of the Customs Act on a reasonable belief that the same had been acquired/possessed/kept in custody illegally and were liable to be confiscated under the Act. Shri Darshan Lal in his voluntary statement dated 13-11-1999 tendered under Section 108 of the Customs Act, 1962 admitted the recovery of the ball bearings of foreign origin from the transport, godown of the appellants' firm.
He, however, further stated that the consignments were booked on a to-pay basis and were to be sent to various traders along with the invoices. He also produced GRs and invoices to show his ignorance about the owners of the consignments. Similarly, Shri Sunil Bradu, Managing Partner of the appellants' firm, also stated that he was looking after the overall administration and supervision of the Delhi Office and that they booked the goods on to-pay basis and transporta- tion charges were collected at the point of delivery. He also showed his ignorance about the parties who booked the impugned goods and further disclosed that no transaction of payment was done in their office and for that reason he or his office did not come across the owners of the goods as the goods were received through the casual labourers of the traders. But on inquiry of the names and addresses of the consignors recorded in the GRs and invoices, were found fictitious. The summons sent to them was received back with the report that no such consignors existed. Similar reports were received about the consignees to whom the impugned goods were to be delivered as per the GRs. On receipt of the show cause notice, the appellants did not put up appearance. They even did not care to file any reply to that notice vide which the confiscation of the seized goods being of foreign origin and imposition of penalty, under Sections lll(d) and 112(b) respectively of the Customs Act was proposed. The Commissioner thereafter on the basis of the material on record passed the impugned order, detailed above.
3. The learned Counsel has contested the confiscation of the goods and imposition of penalty on the appellants on the ground that provisions of Section lll(d) of the Customs Act were not attracted as the movement of the goods was not restricted under any EXIM Policy and there was no evidence to prove that the impugned goods were smuggled into India from any foreign country. Similarly, imposition of penalty under Section 112{b) of the Customs Act, had been contested by the Counsel on the ground that the appellants had no knowledge about the smuggled character of the impugned goods. According to him, the goods were booked by the other parties with the appellants for transportation and the appellants as a transporters were not supposed to open the packing of the goods to ascertain their character. They in a bona fide manner accepted the goods for transportation and as such they could not acquire knowledge about the smuggled character of the goods. Therefore, no penalty under Section ll(b) of the Customs Act could be imposed on them. In support of his contention the learned Counsel has placed reliance on the following cases :Shri Harbans Singh Narula v. CC (P), Mumbai, 1998 (100) E.L.T. 282 (T); (ii) M/s. Rajdoot Road Carrier v. CC, Lucknow, 2000 (118) E.L.T. 146 (T); (iii) Shri Syad Asif Ali v. CC, West Bengal, 2000 (125) E.L.T. 1199 (T);Shri Inderjit Singh Bajwa v. CC, New Delhi, 2001 (127) E.L.T 288 (T);Shri Dinesh Ishwar Lal Patel v. CC, Bombay, 1988 (34) E.L.T. 382 (T); and (vi) Shri Rahat Hussain v. CC (P), West Bengal, 2002 (139) E.L.T. 727 (T).
4. On the other hand, the learned SDK has reiterated the correctness of the impugned order of the Commissioner and contended that the facts and circumstances brought on record are sufficient to prove the knowledge of the appellants about the smuggled character of the impugned goods.
The confiscation of the goods has been made as the goods carried foreign mark and neither appellants nor the alleged consignors/consignees of the goods had come forward to claim the same on the strength of any valid/legal document regarding their acquisition.
6. So far as recovery of the impugned goods i.e. 58256 pcs. of ball bearings with foreign make and brand valued at Rs. 1,50,11/900/- from their office-cum-godown on conducting search by the officers of the Customs Preventive Branch on 13-11-1999 is concerned, the same has not been disputed by the appellants. They have not claimed these goods as owner or in any other capacity on the ground that they had purchased the same from the open market. No other person out of the alleged consignors who booked the goods with the appellants nor the consignees, to whom the goods were allegedly to be delivered by the appellants, had come forward to claim the goods. Therefore, even if the impugned goods were not restricted goods, still their lawful possession/acquisition on the strength of any valid document was required to be proved either by the appellants from whose possession these were recovered or by the consignor or consignee. When none has come forward to claim the impugned goods which carried the foreign mark and brand, it could be safely inferred that these were smuggled one, otherwise these goods could not have entered into India. Therefore, the goods had been rightly seized under Section lll(d) of the Customs Act.
7. The only plea taken by the appellants is that the impugned goods were entrusted to them for transportation and delivery to the consignees whose names were given to them by the consignors and were entered in the GRs and invoices, and as such they had no knowledge about the smuggled character of the goods. But from the facts and circumstances brought on record, their plea can be safely held to be fallacious and motivated just with a view to wriggle out of the clutches of law and avoid imposition of penalty under Section 112(b) of the Act. The appellants did not come across the consignors of the goods who entrusted them for transportation as even admitted by Shri Sunil Bradu, Managing Director of the Firm. The names of the labourers through whom they received the goods had also been not disclosed by him or by the loading assistant, namely, Shri Darshan Lal. The names of the consignors as disclosed in the GRs/Invoices which were produced before the officers at the time of search, had been even found to be fictitious and non-existent during verification. Similarly, names of the alleged consignees to whom the appellants were to deliver the goods, had been found to be bogus/fictitious, during verification.
Therefore, it is quite evident that they had only prepared bogus GRIs/Invoices describing the goods as spare parts in order to camouflage their illegal/unauthorised/ possession of the smuggled impugned goods.
8. Even if it is accepted for the sake of argument that the initial burden was on the department to prove that the appellants had knowledge or reason to believe that the goods in their possession were liable to be confiscated under Section lll(d) of the Act. But to discharge this burden, it was not incumbent on the department to produce only direct evidence. In fact, no direct evidence in that regard could be produced by them. This burden could be discharged by them by bringing on record the facts and circumstances of a determinative character leading to the conclusion that the appellants had full knowledge of the smuggled character of the impugned goods recovered from their possession.
9. Besides this, Section 106 of the Evidence Act enacts exception to the general rule that the burden of proof is on a party who substantially asserts the affirmative of an issue. It is a general rule of evidence that burden of proof lies on the person who wishes to support his case by a particular fact which lies more peculiarly within his own knowledge or of which he is supposed to be cognizant. The rule is of very general application, it holds good whether the proof of issue involves the proof of affirmative or of a negative and has even been allowed to prevail against presumptions of law. The Apex Court in the case of CC, Madras v. D. Bhoormull, 1983 (13) E.L.T. 1546 (S.C.), while applying this rule to a case falling under Section 167(8) of the Sea Customs Act, 1878 (corresponding to Section lll(d) of the Customs Act, 1962) has observed as under : "The broad effect of the application of the basic principle underlying Section 106 of the Evidence Act to cases under Section 167(8) of the Act is that the 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." Similarly, Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Apex Court in the case of Shah Guman Mal v.The State ofAndhra Pradesh -1983 (13) E.L.T. 1631 (S.C.) = AIR 1980 SC 793, while dealing with the question of burden of proof in a case of seizure of gold biscuits not in accordance with the Act and where presumption under Section 123 of the Customs Act was not available to the prosecution, was pleased to observe that presumption under Sections 106 and 114 of the Evidence Act could be availed by the prosecution in special facts of the case.
10. In the instant case, the appellants had full opportunity to establish the acquisition of the impugned goods in the normal course of business as owner or even as a transporter for transportation purposes, from genuine and bona fide party. The impugned goods bearing foreign make and brand having been found in their possession on taking search of their office-cum-godovvn, it was for them to prove as to how and from whom they acquired the same, as all these facts were within their special knowledge. They had not been able to disclose the correct names of the parties who entrusted the goods to them for transportation, as the names of the consignors disclosed by them in the GRs had been found to be fictitious. Similarly, they had failed to disclose the names of the genuine consignees to whom they were required to deliver the goods as the disclosed consignees had been found to be nonexistent. No other document to establish that they acquired the goods in a lawful manner had been produced by them. Therefore, keeping in view the basic principle underlying Sections 106 and 114 of the Evidence Act and the ratio of the law laid down by the Apex Court in the above referred cases, coupled with the tell-tale circumstances, narrated above, the dubious conduct of the appellants, the irresistible presumption to-be drawn is that they had full knowledge of the smuggled character of the goods. The goods recovered from their possession were not of small quantity. Those were 58256 pcs. of ball bearing valued at Rs. 1,50,11,900/- in the market. Therefore, they had been rightly proceeded against and penalised under Section 112(b) of the Act.
11. No exception to the confiscation of the goods under Section lll(d) of the Act can also be taken by the appellants for having not claimed the same. The ratio of the law laid down in the cases relied upon by the Counsel, detailed in Para 3, is not at all attracted to the instant case of the appellants. In those cases, there was no evidence to prove the knowledge of the appellants about the smuggled character of the goods and by applying the general rule that the initial burden of proof about the smuggled nature of the goods was on the Department, it was observed that the Department had failed to discharge the burden and for that reason the confiscation of the goods and penalty imposed on the appellants in those cases, was set aside. But such is not the position in the case in hand. Here the department has been able to show that the appellants had full knowledge about the smuggled nature of the goods.
12. Moreover, it is a question of fact to be determined in each case keeping in view the facts and circumstances and material brought on record, as to whether the party from whose possession the contraband were recovered had knowledge or belief that the same were liable to be confiscated under Section lll(d) of the Act or not. There can be no canon for weighing evidence and drawing inferences therefrom, in all such cases, each case has to be considered on its own facts. Therefore, if in the cases referred by the learned Counsel, detailed above, the evidence was not sufficient direct or circumstantial to establish smuggled nature of the goods and knowledge of the possessor, the observations, made in those cases by the Tribunal while setting aside the confiscation of goods and penalty on the possessor, cannot be made applicable in the instant case, wherein there is overwhelming evidence to establish knowledge of the appellants of the smuggled character of the impugned goods, as discussed above.
13. In view of the discussion made above, we do not find any legal infirmity in the impugned order of the Commissioner confiscating the seized goods and imposing penalty on the appellants. The order is perfectly valid and we upheld the same. As a result, the appeal of the appellants is ordered to be dismissed being without any merit.