Per Shri T.P. Nambiar: This is an appeal filed by the appellant against the order passed by the Collector of Customs (Appeals), Calcutta in Order No. Cal. Cus-49/92, dated 24.1.1992. In terms of the impugned order he confirmed the confiscation of the goods seized in this case at Serial Nos. i to 9 and 12. He confirmed the penalty imposed on the appellant, but set aside the penalty imposed on the shop.

2. This case pertains to the seizure of notified goods at Item Nos. 1 to 9. These are Gents Wrist Watch Case complete with back, dial and brand of Citizen-make & Richo-make and somewhere Ladies Wrist Watch Cases. Item No. 12 is Oil for Wrist Watch (1 Box X5 packs). There were other items also seized in this case including the currency of Rs. 30,000.000 which were released in favour of the appellant.

3. Show cause notice was issued. Reply was furnished by the appellant and thereafter, the Adjudicating Officer passed an order and in appeal against that order the learned Collector (Appeals) released Items: i 0 and 11 and the Indian Currency of Rs. 30,000.00 and the documents at Item No. 14.

4. The learned Consultant, Shri P.K. Sengupta for the appellant stated that Item Nos. 10 and 11 are also Wrist Watch Cases which are notified items. They were released. Therefore, there was no reason why Item Nos. 1 to 9 should not be released. He also stated that even that item Nos. 1 to 9 are notified goods and they are actually manufactured in India and they were embossed with the foreign manufacturers' seal, but actually they were embossed in India itself. He contended that the marks found on the dial cases did not indicate the actual country of manufacture. He also stated that a joint investigation was conducted in this case and the seized goods were only spare parts which were having foreign brand names such as Citizen/Richo-make and it will not prove that they are foreign goods. He also stated that evidence was submitted in this behalf. What was mentioned on the goods was that they were embossed with the marks as 'Japan' and there is nothing to show that it was made in Japan. There were all embossed in India itself. A mere look will satisfy the same. He also stated that evidence was produced in this behalf, which was not looked into.

5. The learned Senior Departmental Representative, Shri D.K. Saha for the Department stated that Item Nos. 1 to 9 are notified goods and since they were seized on a reasonable belief that they were smuggled into the country, the burden has shifted on to the appellant to prove that they were not smuggled goods. The appellant has not discharged this burden.

6. I have considered the submissions of both sides. I will first take up Item No. 12 which is Oil for Wrist Watch in one box containing five packs. They are not notified items. Therefore, the burden is on the Department to prove that these are smuggled goods. No such proof is adduced by the Department. Hence the confiscation of the same is not in order. I order that the same be returned to the appellant.

7. As far as Item Nos. 1 to 9 are concerned they are notified goods. They were bearing foreign markings as 'Citizen Quartz, Japan', 'Richo, Japan' etc. They were seized on a reasonable belief that they were smuggled into the country. Hence the burden has shifted on to the appellant to prove that these were not smuggled into the country.

8. In a decision reported in 1984-ECR-l 18, the Hon'ble Supreme Court in the case of Kewal Krishan Vs. State of Punjab held that when goods are seized on a reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized. Their Lordships also held that the onus is on him to show that the goods are not smuggled goods, that is not of foreign origin on which duty is not paid. The onus is not on prosecution to show that the goods are not of Indian origin.

9. In view of this clear principles of law it is for the appellant to show that