Page 151 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] COMMISSIONER OF CUSTOMS (PREVENTIVE) v. RAJESH PAWAR 685
from G. Seal & Co. were melted by the writ petitioner and additional gold added
to prepare eleven biscuits therefrom. In any event, the complete lack of transac-
tion for a period in excess of 18 months would not permit any benefit of doubt to
be given to the writ petitioner.
8. What is evident from both the order of adjudication and the order of
the Tribunal, on the basis of the admitted statements rendered by the writ peti-
tioner under Section 108 of the Act, is that the writ petitioner claimed to have
obtained gold bars bearing Swiss marks and having heated the biscuits and
hammered them to obliterate the foreign marks. Thus, it may be taken that the
petitioner obtained the biscuits from G. Seal & Co., obliterated the foreign marks
and retained the same. That would still not explain how a lesser quantity of gold
increased to a higher amount and how ten biscuits became eleven without melt-
ing any of the ten original biscuits.
9. Quite plainly, it was a dishonest defence that the writ petitioner had
raised before the authorities and the authorities, adept at receiving such specious
excuses, disregarded the transaction between the writ petitioner and G. Seal &
Co. as the origin of the goods recovered from the writ petitioner’s person in No-
vember, 1994. It is in such circumstances that the adjudicating authority and the
Tribunal may have felt that there was no need to elaborate on the reasons for
disbelieving the essential ground of defence raised by the writ petitioner.
10. The writ petitioner accepts that once the material was discovered
from the writ petitioner’s person, the burden lay on the writ petitioner to demon-
strate how he obtained the goods. It is also accepted that upon the writ petition-
er’s absence to discharge the burden, an adverse inference may be drawn against
the writ petitioner.
11. In the present case, the writ petitioner could not discharge the bur-
den at all since it was impossible for the writ petitioner to suggest that the 1283g
of gold recovered from him were attributable to the 1166g of gold that had been
purchased by him from G. Seal & Co. some eighteen months back. Since there
was no meaningful defence or any modicum of an explanation rendered by the
writ petitioner as to how such writ petitioner came to be in possession of the gold
that was found on his person, the order passed by the adjudicating authority and
the order passed by the Tribunal cannot be faulted.
12. The Single Bench in this case does not appear to have gone through
the order of the adjudicating authority or of the Tribunal. The order of the Tribu-
nal assailed in the writ petition clearly recorded cogent grounds as to why the
Tribunal disbelieved the writ petitioner and agreed with the order of adjudica-
tion. When findings of fact are rendered by competent bodies having jurisdiction
to enquire into such facts, such factual findings are to be scarcely interfered with
in exercise of the power of judicial review unless they appear to be perverse on
the face of it. The Single Bench in this case picked a stray line from the order of
the Tribunal to find it to be without basis. However, a more wholesome reading
of the order passed by the Tribunal would leave very little room to detract there-
from.
13. An alternative argument has been attempted by the writ petitioner
at this stage by referring to Section 125 of the Act of 1962. According to the writ
petitioner, since it was not prohibited to import or export gold at the time when
the seizure was effected from the writ petitioner, the adjudicating authority
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