TaxTMI 
TaxTMI 
2014 (9) TMI 376
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....emises. The hotel authorities were asked about the ownership of the said vehicle, which revealed that the car belonged to the occupants of Room No. 113. The records available at the hotel indicated that one Shri Sameer M.P., Fathima Bhavan, Edapal, Mallapuram had checked into Room No. 113 of the said hotel at 2.00 a.m. on 10-6-2003. Thereafter the Officers proceeded to Room No. 113 of the said hotel where two persons who introduced themselves as Shafiq and Sameer were present. Shri Shafiq acknowledged that the car belonged to him and that he had left from Edapal in Mallapuram, Kerala along with Shri Sameer on 9-6-2003 and reached Bangalore in the early hours of 10-6-2003 and checked into the hotel. On enquiry, they informed that they had carried computer parts in the said car from Edapal in Mallapuram in Kerala to Bangalore for sale in Bangalore on the directions of one Shri Mohammed of Edapal, Kerala. Examination of the Mitsubushi Lancer car was carried out. Nineteen cartons containing 99 sets of Intel Pentium 4 Processors and cooling fan of foreign origin valued at Rs. 7,92,000/- were found. M.P. Sameer and Anwar Shafiq were asked to produce documents for possessing and transport....
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....urden to prove that the goods were smuggled ones. The fact that such goods are freely available in the market is not denied or contested by the Revenue. The appellants have clearly stated that they had not smuggled the goods, but they had purchased the same from open market i.e., Burma Bazaar, Chennai. In those circumstances, the goods cannot be seized and confiscated. The judgment in the case of N.A. Khan clearly applies to the facts of the case, accordingly it set aside the impugned orders. Aggrieved by the said order, the Revenue is in appeal. 6. The learned Counsel for the appellant-Revenue assailing the impugned order of the Tribunal contends that as the goods involved in this appeal do not fall within Section 123 of the Customs Act, in the first instance, the burden of proving the confiscated goods are smuggled goods is on the department. The said burden is discharged by them by showing that the goods seized all had foreign markings. They were seized from the car which was parked in the Hotel. The statement recorded under Section 108 of the Act shows that these goods were purchased from Burma Bazaar, Chennai, but there were no receipts evidencing the same. Admittedly, i....
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....e goods which are seized under the Act, in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized and if any person, claims to be the owner thereof, such person, and anything other than the goods, the owner of the goods. This Section 123 is an exception to the law relating to the burden of proof, which imposes an obligation on the owner or the person from whose possession the goods are seized to prove that it is not a smuggled goods. In other words, statutorily the negative is expected to be proved by the owner or the person from whose possession the goods are seized. This presumption is that in respect of the goods covered under the said Section, if it is found in the possession of the owner or the person in possession, it is a smuggled goods. However, this Section has no application to the goods which do not fall within the said Section. In respect of those goods, the burden of proving that the goods seized or smuggled goods is on the person who has asserted it to be a smuggled goods. Here the general law of evidence is attracted. 11. Section 101 of the Ind....
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....prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar - (1774) 1 Cwop. 63 at p. 65 "According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as a part of its primary burden. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in ....
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....d to a proceedings in which they are proceeding against that person. Similarly, in all cases to which Section 123 is not attracted, the initial burden of proving that the goods are smuggled goods is on the Department. Under no circumstances, it changes, but in discharge of that burden, once the department adduces evidence, the question is whether that burden of proof shifts to the opposite party, if so, at what stage. It is in this context, Section 106 is attracted as the smuggling being a clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. 14. It is here the underlying principle of Section 106 is attracted and once prima facie evidence is adduced to show that the goods seized are smuggled goods, the burden of showing that it is not the smuggled goods shifts to the person from whose possession these goods are seized. There is a presumption of innocence, but it may be successfully encountered by the presumption of guilt arising from the unexplained lawful possession of the property. Therefore, the question whether the department has discharged t....
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.... in the Mitsubishi Lancer Car which was parked in Hotel Broadway at Bangalore. It is the case of the respondents that the goods were purchased by them in Burma Bazaar, Chennai. Admittedly, they were not in possession of any documents to show that they purchased those goods from Burma Bazaar, Chennai. It is admitted that they are in the business of selling these electronic items which is for the purpose of selling them. These items were brought from Chennai to Bangalore through Mallapuram. If their statement is to be ignored, there is nothing on record to show that these goods were readily available in plenty in the open market. The goods which were seized were not meant for their personal use. It was meant for sale. If any person is carrying on a lawful business, he should have possessed the documents showing title to the said property. If he has purchased it from a dealer or a wholesaler, there should be some documents evidencing such purchase. It is not forthcoming. Therefore, the initial presumption of innocence cannot be extended to the respondents. As the said goods are all having foreign markings, in the absence of any material to show that it is purchased from a registered d....