K. Gopal Hegde, Member (J)

1. This appeal is directed against the Order bearing No. VIII(b)-10/29/Cus/80/32334 dt. 9.11.1982 passed by the Additional Collector of Customs (P) Bombay.

2. As the appellant had challenged the confiscation of 24 T-shirts and 29 half shirts and the levy of penalty of Rs.250/- and had not challenged the confiscation of other goods, it would not be necessary to set out in detail the facts of the case.

On 26.3.1980 on information that goods of foreign origin are being sold in Flat No. l2-B of Sun Sea Co-op Housing Society, the officers of the Customs proceeded to that flat and they found a person by name Omkar L. Verma coming down the staircase of that building. On information that he had purchased certain materials of foreign. origin from the flat in question the officers went and knocked at the door of that flat, but none opened it. Thereafter, the assistance of the police was sought. On arrival of the police the present appellant opened the door. The search was carried out. During the search 29 half shirts and 24 full T-shirts were recovered from a bathroom. The officers also recovered certain wrist watches which were thrown outside from the flat in question. After investigation and after issue of showcause notice and after affording personal hearing, the Additional Collector of Customs who held an enquiry ordered confiscation of half shirts and T-shirts and also wrist watches, but however, gave benefit of doubt in respect of a telephone and a calculator. He also imposed a personal penalty of Rs. 250/- on the appellant.

3. During the hearing of this appeal Shri Saptarshi Advocate appearing for the appellant contended that the appellant does not claim ownership of the wrist watches. He urged that the statement of the appellant remanded on 27-3-1980 was not voluntary. The appellant was prosecuted before the Additional Chief Metropolitan Magistrate and was acquitted by the learned Magistrate. The T-shirts and half shirts are not of foreign origin, and therefore, the Customs have no jurisdiction either to seize or to order confiscation. He, therefore, prayed that the order of confiscation of T-shirts and half shirts may. be set aside and the personal penalty imposed on the appellant may also be set aside.

4. Shri Senthivel appearing for the respondent Collector however submitted that the search itself was on information. Further a purchaser in his statement had stated that he had purchased the goods of foreign origin from the appellant and he was also found in possession of the goods of foreign origin. Shri Senthivel also submitted that in his statement the appellant had categorically stated that the seized goods as well as the goods sold to Verma were purchased by him from the passengers coming from abroad. This statement had not been retracted. The complaint of the appellant that it was not voluntary cannot be accepted. The panchanama describes the goods as of foreign origin. Shri Senthivel further urged that besides the confiscation of T-shirts and half shirts, there was confiscation of the wrist watches and the allegation in the show cause notice was that the wrist watches were thrown out by the appellant and that the appellant had not challenged the order of confiscation of wrist watches. In the said circumstances no exception can be taken to the personal penalty imposed on the appellant.

5. I have carefully considered the submissions made on both sides. Admittedly, the T-shirts and the half shirts were not the notified goods at the relevant time. Therefore, the provisions of Chapter IV-A are not attracted. They were also not notified under Section 123 of the Customs Act. Therefore, there was no burden on the appellant to establish that the T-shirts and half shirts were licitly imported into India. The initial burden that T-shirts and half shirts were smuggled goods lies on the department. The department had not led any evidence to discharge that burden. The department however relied upon the admi