Page 279 - ELT_1st September 2020_Vol 373_Part 5

2020 ] COMMISSIONER OF CUSTOMS (PREV.), LUCKNOW v. RAJESH KUMAR SETH 717

Revenue further submitted that appeal before Commissioner (Appeals) was filed
by Revenue and that Learned Commissioner (Appeals) has held that there is
nothing on record to suggest that the impugned gold was imported into India
against any prohibition under Customs Act, 1962 and therefore he has allowed
release of gold on redemption fine of Rs. 5 lakhs and therefore, Revenue was in
appeal because as per show cause notice the gold was having foreign marking of
Valcambi Suisse, therefore, the gold should have been absolutely confiscated.
5. The Learned Consultant along with Learned Advocate have submit-
ted that question whether the foreign marking of goods can be treated as admis-
sible evidence has been dealt with by Hon’ble Bombay High Court in the case
State of Maharashtra v. Prithviraj Pokhraj Jain reported at 2000 (126) E.L.T. 180
(Bom.) and in Para 19 the Hon’ble Bombay High Court has observed as follows :-
“19. The burden was, therefore, on the prosecution to prove that the
goods were smuggled. For this the prosecution relied upon the evidence of
Hebbar who stated that he believed the goods to be smuggled, because
watches and watch straps were of foreign origin, the import of which was
heavily restricted and prohibited and they were found in huge quantity.
The foreign origin of the watches is tried to be shown from the foreign
markings on the watches. The question whether the foreign markings of
goods can be treated as admissible in evidence was considered by Naik J. in
Criminal Appeal No. 3 of 1966, decided on 22nd December, 1966. Among
the property involved in that case were some gold slabs. The slabs bore the
marking “Johnson Mathey 9990 London”. Naik J. observed in his judgment
that the markings do not speak for themselves and that evidence would be
hearsay evidence. There was nothing to indicate that the markings were re-
ally done by Johnson Mathey in London. No presumption can arise in re-
gard to the markings, unless there is evidence to show that those markings
were made by a particular company in the ordinary course of business. A
Division Bench of the Gujarat High Court has also taken a similar view in
Asstt. Collector of Customs, Baroda, v. M. Ibrahim Pirjada, 1970 Criminal
Law Journal, 1305. There, the Gujarat High Court has held that mere mark-
ings cannot be taken as proof of the fact of foreign origin of the goods as
such markings and labels would be hearsay evidence. With respect, I agree
with the above view.”
They further submitted that Learned Commissioner (Appeals) has held that there
is nothing on record to suggest the impugned gold was imported into India
against any prohibition under the said Act. They have further submitted that
Revenue has not brought any evidence to establish that the goods were of foreign
origin through investigation and collection of evidence. The Learned Consultant
and Learned Advocate have further submitted that allegations in the show cause
notice was for violation of Notification No. 9/1996-Cus. and the same has not
been established. Therefore, the whole proceeding should be dropped.
6. Having considered the submission from both the sides and on pe-
rusal of record, I note that though the contention of Shri Rajesh Kumar Seth is
that Revenue could not establish that the goods were brought from Nepal, how-
ever, he was also not in a position to produce any document which could estab-
lish as to how he got possession of gold. Therefore, I further modify the im-

EXCISE LAW TIMES  1st September 2020  279