Full Judgment
2. The allegations against these appellants are that the officers on receipt of information searched the residence of Shri Anees in presence of Shri Abdul Rauf brother of Anees on dated 31-7-1991 at about 02.00 hours and recovered goods of foreign origin valued at Rs. 22,40,500/-.
The details of which have been shown in the recovered memo dated 31-7-1991. Abdul Rauf could not produce any document showing the legal import of the recovered goods. On interrogation in his statement dated 31-7-1991 he stated that the recovered goods were smuggled from Krishna Nagar, Nepal during the night and had been kept in the house from where it was recovered and seized. He said to have stated that the seized goods were owned by Shri Hanif. On receiving the smuggled goods these are sent for further disposal to Kanpur and Bombay. The house from where the goods were seized belongs to his brother Anees. The work of smuggling the goods into India and their further disposal is done by Haneef and the sale is done by Anees. Abdul Rauf further stated that he gets Rs. 40/- per day for guarding the goods. On these facts proceedings were initiated against these three persons under relevant Sections of Customs Act, 1962 and Import and Export (Control) Act, 1947. At the time of seizure, Hanif and Anees were not available.
Summons were issued to both of them. Mohd. Hanif did not appear on the ground of illness while summons could not be served on Anis, hence it was pasted at his door. Both the persons could not be presented for recording their statements hence show cause notice was issued on all the three of them. The show cause notice was served on Abdul Rauf while the summon was not served on the other two persons as it was undelivered with the remarks 'that they were not found at their residence' and in case of Anees it was also informed that he lives somewhere in Bombay. The Customs House Bombay could not furnish the correct address of Anees. The advocate of Rauf sent a letter stating that reply could not be made as the records were not available with Additional Collector at Lucknow. As there was no reply from any one of them, the Collector proceeded and adjudicated the case and pass the impugned orders.
3. We have heard the Learned Advocates Shri Bipin Garg and Shri Vinay Garg for the Appellants and the Learned SDR, Shri P.N. Das for the Revenue.
4. It is common case of both the Counsels that the goods were not of foreign origin, as can be seen from the seizure report and the report does not indicate the foreign origin of the goods under seizure. It was also stated that Rauf is an old man of 70 years suffering from leprosy.
He had been detained in COFEPOSA. It was stated that Rauf did not make the statement that the house belonged to Anees, even if such a statement was made it was an incorrect one, as the house belonged to one Shri Ram Chander. They have produced the extract of village panchayat. Hanif was working in the Bakery in Bombay and in support has produced several certificates. Anis is working as an Electrician in M/s. Crompton & Greaves. In proof of his working, he has produced his employer's certificate, extract from attendance records from January, 1991 to December, 1991, which shows his presence in the factory. Hanif and Anis have also produced proof of their salary receipt of Rs. 3,500/- per month and Rs. 5,197.18 per month respectively. Both the Counsels submitted that both on merits as well as on financial hardship they should be granted waiver of pre-deposit.
5. The Learned DR justified the impugned order and submitted that all the three of them were regular offenders indulging in smuggling. The goods had been seized near border of Nepal, which showed that they are all smuggled goods. Rauf had been detained in COFEPOSA and the goods were owned by Hanif and all the three of them were indulging in smuggling.
6. We have carefully considered the submissions made by both the sides.
Rauf is said to be a watchman guarding the goods on daily wage of Rs. 40/-. In his statement he is said to have stated that the house belongs to Anis, his brother. Anis has not been served with summons and notices. He has denied his involvement and has produced the extract from village panchayat to show that the house belonged to one Shri Ram Chander. Anis has also stated that he is permanent resident of Bombay working with M/s. Crompton & Greaves as an Electrician from 1962 onwards. He has produced the certificate of attendance and proof of working with M/s. Crompton & Greaves. Hanif has produced certificates to show that he is a permanent resident of Bombay and working as a salesman. Seizure report does not indicate foreign marking on the seized goods nor the country of origin of the goods, to support the allegation of the department. The department has to show the smuggled nature of the goods and the goods being of foreign make with foreign branded marks. The report does not show the make, foreign brand of the goods. Merely because the Rauf had admitted about the goods being of Nepal origin and house being owned by Anis that by itself will not a ground unless the corroborative evidence is shown and goods reflected foreign marking and being of foreign make. The department had correct address of Anis and Hanif, yet they had not apprehended them and arrested them to implicate them in the case. Hanif and Anis have shown their permanent residential address at Bombay and also have produced certificates of working in Bakery and with Crompton & Greaves as a permanent employee from 1962. Hanif and Anis have been proceeded on the basis of the statement of Rauf. In view of the rebuttable evidence produced by Hanif and Anis and in the absence of further investigation by the department the appellants have made out a strong prima facie case on merits.
The appellants have stated that they have large families to maintain.
Rauf is said to be an aged person suffering from leprosy. Although there is no medical certificate yet he has filed his affidavit. In view of this prima facie findings, we feel that the appellants have got a good case and therefore, taking into consideration all the submissions made by them and the documents produced, including the plea of financial hardship, therefore; it is just and necessary to waive the pre-deposit and grant unconditional stay of its recovery pending disposal of the appeal.