Rajesh Pawar vs Union of India

I.P. Mukerji, J.—None appears for the respondent authorities even at the second call. No accommodation is sought. The respondents have filed their affidavit in opposition.

I do not think the order of the Tribunal dated 29th August, 2002 2003 (152) E.L.T. 201 (Tri. - Kol.)] can be sustained. There are several reasons for this.

Mr. Bandopadhyay, learned advocate for the petitioner points out that at that point of time import of gold was free. There is no contradiction of the statement. When the situation is that importation of gold was free, a higher onus was on the Revenue to prove that the gold bars, which were seized from the possession of the appellant, were illegally imported or "smuggled". More so, when there was no dispute that the petitioner was carrying on the business of jewellers.

Secondly, the order of the tribunal notes that eraser of marks on the gold biscuits is an indication of illegal importation. It seems that the tribunal has gone against the appellant only on the basis that the marks had been removed from the gold biscuits seized by the Revenue from the petitioner.

The most important finding of the tribunal seems to be......."The marks having been tampered with by him, the seized biscuits cannot be correlated with the biscuits claimed to have been bought by him from M/s. G. Seal & Co.. In this view of the matter, I find that the gold in question has been rightly confiscated by the authorities below and a penalty has been justifiably imposed upon the appellants. The impugned orders do not call for any interference. The appeal filed by the appellant is accordingly rejected."

If a person has to be inflicted an order of confiscation of 11 gold biscuits weighing about 1283.650 gm., more substantial proof was required before confiscation of the goods. On the other hand, the evidence which the appellant produced in the shape of purchase bills, stock register, etc. has not even been dealt with by the tribunal.

It is true that the appellant was able to adduce some evidence regarding the legal source of the goods under Section 123 of the Customs Act, 1961 under which the petitioner had the burden of proof, since gold items were seized. But unfortunately the Revenue has not been able to disprove the facts brought on record by the petitioner.

In those circumstances, it can be said that the tribunal was acting on no evidence and if an authority acts on no evidence, the High Court can exercise its powers under Article 226 of the Constitution of India to set aside an order.

In those circumstances, the order of the tribunal dated 29th August, 2002 is set aside and quashed.

This writ application is, accordingly, allowed.

The department is directed to return the confiscated gold biscuits to the petitioner within six weeks of communication of this order. Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.