T.P. Nambiar, Member (J)

1. The present appeal has been filed by the appellant against the Order-in-Original No. 358-Cus/88 dated 22-11-1988 passed by the Additional Collector of Customs (Preventive), Indo-Nepal Border, Muzaffarpur, whereby the learned Collector had absolutely confiscated a total quantity of 274 Kgs. of cloves under Section 111(d) of the Customs Act, 1962. In this appeal, the appellant has prayed for setting aside of the impugned order of the Additional Collector and release of the aforesaid cloves in his favour.

2. The brief facts of the case are that acting on information received through intelligence, the Customs officers searched the residential premises of the appellant on the strength of a search warrant, and found 10 bags of cloves weighing 274 Kgs. valuing Rs. 54,800/-, which were of third country origin. The appellant was not present in the house and the other inmates could not produce any valid document to evidence legal acquisition of the said goods and the officers seized the same under Section 110 of the Customs Act, 1962.

2A. The appellant was thereafter summoned and his statement under Section 108 of the Customs Act was recorded. He disclosed that he had purchased the said cloves from a firm named and styled as M/s Laxmi Narain Baburam of Delhi and submitted a photocopy of Bill No. 604 dated 24-3-1988 in support of his claim. He also stated that he brought the same in a car from Delhi to Purnea.

3. A show cause notice was also issued to the appellant and he reiterated the above statement, in his reply to the show cause notice. After granting personal hearing the case was adjudicated. The cloves in question were confiscated by the learned Additional Collector by the impugned order. But no penalty was imposed on the appellant. Against that order, the present appeal has been filed.

4. The learned Barrister Shri S.K. Roy contended that the order in question is in violation of principles of natural justice. He also contended that there is no proof to show that these cloves are of foreign origin. He also contended that there is variation between the allegation in the show cause notice and the Order-in-Original. It was also contended that there was no reasonable belief for seizure of the goods in question. He also contended that cloves are grown even in India and this factor escaped the notice of the learned Additional Collector. He also contended that the appellant had purchased the cloves from Delhi and had produced the bill, which was found to be genuine after verification and hence the order is bad in law.

5. The learned J.D.R. Shri A. Choudhury justified the order. He contended that there was reasonable belief and the Tribunal may not sit on judgment on the reasonable belief of the officer. He also contended that the seized cloves were of foreign origin and they were banned for importation and are liable to be confiscated. It was also contended that necessary verification was done with respect to the bill produced by the appellant and that the connection with the bill and the cloves in question were disproved. He also contended that there is discrepancy between total quantity of cloves purchased and the cloves seized. He also contended that such huge quantity of cloves could not be brought in car and it is not acceptable. He, therefore, contended that these are smuggled goods and justified the impugned order.

6. We have heard both the sides. It was contended that when the goods are found in huge quantity and when they are seized on reasonable belief the burden is on the appellant to prove that they are not smuggled goods. Shri Choudhury relied on the following decisions in this regard: (1) MANU/CC/0010/1986 : 1986 (25) ELT 811 (Jain Enterprises v. Collector of Customs); and (2) 1988 (4) S.S.C.l. The decision of Jain Enterprises is not applicable to the facts of this case. In that case, there was an inculpatory statement by the appellant. In this case, there is no such inculpatory statement. But ther