Custom, Excise & Service Tax Tribunal
Shri Badri Narayan Sharma vs C.C.E. Jaipur-Ii on 24 July, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Appeal No. C/254/2005-CU(SM)
[Arising out of Order-in-Appeal No. 566-569-RM-CUS-JPR-II-2004 dated 31.08.2004 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Shri Badri Narayan Sharma .Appellants
Vs.
C.C.E. Jaipur-II .Respondent
.
Appearance:
Shri Naresh Khanna, Advocate for the Appellant Shri R.K. Mishra, DR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 24.07.2015 FINAL ORDER NO. 52378/2015-CU(SM) Per Ashok Jindal:
The appellant Shri Badri Narayan Sharma has filed his appeal against the impugned order claiming to be the real owner of the impugned goods.
2. The facts of the case are that 10 gold biscuits and 3 pieces of gold were recovered from the possession of Shri Shyam Lal Pal who at the time of interception on 02.06.1999 outside the Railway station, Bikaner disclosed that he was carrying gold biscuits as an employee of Shri Gopal Chand alias Gopal Sita for delivery to Shri Shyam Sundar Soni and on interrogation of Shri Gopal Chand alias Gopal Sita it was revealed that he has purchased the said gold from Shri Badri Narayan Sharma (the appellant before me) who was also interrogated and disclosed that he has purchased the gold biscuits / pieces from one Shri R K International, Saraf Market, Chandni Chowk, Delhi. Thereafter, proceedings were initiated for confiscation of the impugned goods and imposition of penalty on all the persons involved in the transaction. Adjudication took place. Matter came up before this Tribunal on appeal filed by Shri Shyam Lal Pal, Shri Gopal Chand alias Gopal Sita, Shri Shyam Sunder Soni and a person posing himself to be Shri Badri Narayan Sharma on behalf of appellant before me. The appeals were disposed of vide order no. A/993-996/2005-SM(BR) dated 13.05.2005. Holding that Shri Badri Narayan Sharma is the owner of the goods and have disclosed the mode of acquiring the said gold. It was held that penalties on the appellants before this Tribunal at that time is not imposable and the gold was also not liable for confiscation. As Shri Badri Nayaran Sharma (appellant before me had not filed any appeal which was disposed of by the order of this Tribunal dated 13.05.2005) filed an appeal against the impugned order on 29.03.2005. When this appeal came up for hearing, it came to the knowledge of this Tribunal that the appeal of the appellant has already been disposed of by order dated 13.05.2005. Thereafter, the doubt was raised by this bench to know who is the real Badri Narayan Sharma. Matter was referred to the Adjudicating Authority / authorities below who identify that the appellant in this appeal before me is real Badri Narayan Sharma and appeal filed on earlier occasion by a person with false identification as Badri Narayan Sharma. As it is established that the appellant before me is Badri Narayan Sharma, therefore, I proceed to adjudicate the appeal listed before me.
3. During the course of arguments on the earlier occasions the Ld. Counsel for the appellant submits that as identity of the appellant has been established, therefore, the earlier order to be made operative in favour of the appellant.
4. The request of the Ld. Counsel for the appellant was turned down by this Tribunal on the premise that on earlier occasion the appellant who was considered as Badri Narayan Sharma is non est. Therefore, said order cannot be made operative to the appellant before me. In these circumstances, appeal was listed for fresh consideration on merits of the case today itself.
5. When the arguments were made by the Ld. Counsel for the appellant today the Ld. Counsel for the appellant submits that the ownership of the appellant has been confirmed by this Tribunal vide order dated 13.05.2005. Therefore, as there is no dispute regarding the ownership of the impugned goods as well as the identity of the appellant. Therefore, the appeal of the appellant be allowed as the order dated 13.05.2005 has been admitted by all the parties to the list.
6. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that as appellant was not a party to the earlier list, therefore appeal be heard on its own merits.
7. Heard the parties. Considered the submission.
8. In this case Shri Shyam Lal Pal was intercepted on 02.06.1999 outside the Railways Station, Bikaner carrying 10 gold biscuits and 3 pieces of gold who stated that he is an employee of Shri Gopal Chand alias Gopal Sita for delivery of the said gold to Shri Shyam Sunder Soni. When Shri Gopal was interrogated he revealed that he has purchased the said gold from the appellant before me who on interrogation revealed that he has purchased the gold from Shri R K International, Chandni Chowk, Delhi against an invoice and showed all the documents for procurement of gold through proper channel. When the appellant has been able to show the source of procurement by proper channel and on payment thereof. In these circumstances, the order of this Tribunal dated 13.05.2005 held that Shri Shyam Lal Pal, Gopal Chand alias Gopal Sita and Shyam Sunder Soni are not the owner of the impugned goods. In those circumstances, only the appellant is the owner of the impugned goods.
9. As there is no dispute regarding the identity of the appellant as well as ownership thereof, further, the appellant has been able to establish the proper source of the procurement of the impugned goods. In that circumstances, I hold that impugned goods are not liable for confiscation. Consequently, penalty on the appellant is not imposable. In these circumstances, I direct the adjudicating authority to release the impugned goods to the appellant.
10. With these terms, appeal isdisposed of.
(Dictated and Pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
3
C/254/2005-CU(SM)