Custom, Excise & Service Tax Tribunal
Shri. Girish Dighe vs The Commissioner Of Customs (P) on 28 March, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/123, 106, 122, 124, 130, 160, 163/08 (Arising out of Order-in-Appeal No.13/2007 TS (Deptt) dated 29/10/2007 passed by Commissioner of Customs (Appeals), CSI Airport, Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, 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?
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Shri. Girish Dighe
Shri S.H.Pandit
Shri D.W.Shinde
Shri N.P.Ranjan Appellants
Shri D.B.Kharpude
Shri Dilip Rajaram Aier
Shri Sachin Deshmukh
Vs.
The Commissioner of Customs (P),
Mumbai Respondents
Appearance:
Shri.R.Sundaram, Advocate for Appellants
Shri.S.G.Dewalwar, SDR for Respondents
CORAM:
Mr. M.V. Ravindran, Member (Judicial)
Date of Hearing : 28/03/2008
Date of decision : 28/03/2008
O R D E R No:..
Per: Shri M.V.Ravindran, Member (Judicial)
1. All the above appeals are arising out of a common Order-in-Appeal dated 29th October, 2007 passed by the Ld. Commissioner of Customs (Appeals), by which the order-in-original dated 29th September, 2006 passed by the Ld. Jt. Commissioner of Customs, in favour of the appellants herein, was set aside and the matter was remanded for de-novo adjudication.
2. I have heard both the sides at length.
3. The brief facts of the case are as follows :-
(i) Certain goods were detained allegedly on 2nd/3rd December, 1999 by the Officers of Thane Municipal Corporation. There is no panchnama evidencing the detention of the goods on the said date, bearing signatures of the panchas and of the person from whose possession the same were seized.
(ii) A panchnama dated 9th December, 1999, was drawn by the customs authorities for seizure of the aforesaid goods valued at Rs. 2,14,805/-.
(iii) It was alleged that these detained goods were part of the consignment seized on 1st December, 1999 and taken over by CIU officers from Lokmanya Tilak Terminus, Kurla to office of Marine & Preventive Wing, Everest House, Marine Lines. It was further alleged that the impugned goods were removed from the consignment taken over to the office of Marine & Preventive Wing from Kurla, without including the same in seizure panchnama dated 1st December, 1999 drawn at the office of M & P Wing at Everest House.
(iv) Statements of various persons including among others the appellants, the employees of Thane Municipal Corporation, tempo driver, cleaner and one Bismillah Khan, who was concerned with handling of the detained goods and taken over from Kurla, were recorded during the course of investigations.
(v) Admittedly, I- Card Registers of staff working in M&P wing, Customs, were shown to Shri Saraf, employee of Thane Municipal Corporation (TMC), after which he identified some of the Appellants in the identification parade. Similarly, the Tempo driver Shri Dhundale, and cleaner Shri Sanjay Shedge allegedly identified some of the appellants after being shown the I-Card Register.
(vi) Shri Bismillah Khan in his statement dated 11-12-1999, on being shown the photographs of the packages identified the markings on the outer packing of impugned goods, as those on the goods taken over from Kurla as denoted on the Railway Parcel Way Bill receipts.
(vii) Relying on these evidences, a Show Cause Notice dated 31-5-2000 was issued proposing confiscation of the impugned goods detained at Thane and calling upon the Appellants to show cause as to why penalty should not be imposed upon them under section 112(a) & (b), (i) and (ii) of the Act.
(viii) The appellants filed their replies to show cause notice. They were exonerated by the Ld. Jt. Commissioner i.e. the adjudicating authority by a detailed order dated 29th Sep., 2006, and it was held mainly on facts that the appellants were not proved guilty.
(ix) The Revenue challenged the Order-in-Original before the Ld. Commissioner (Appeal). The Departmental Appeal was devoid of conclusion as to any illegality, impropriety or unreasonableness in the order-in-original, and the only grievance apparent from Appeal is that the evidences were not appreciated to the satisfaction of Revenue. The Department in para 8 of their Appeal is relying on disciplinary authority proceedings.
(x) However, in the appeal vide the Order-in-Appeal dated 29th October, 2007, the Order-in-Original dated 29th September, 2006 was set aside and the matter was remanded back for de-novo adjudication. The Ld. Commissioner (Appeals), observed that the lower authority has not considered full facts which have come in the statements of various persons and pointed by department, which according to him were never retracted before passing the order. He was further influenced by the imposition of penalty by disciplinary authority against most of the officer. He directed the original authority while remanding the matter, to decide the case afresh after considering averments as recorded by him and the evidence on record.
(xi) This Order-in-Appeal dated 29Th Oct., 2007 is impugned before us by the Appellants.
4. In brief, it is the case of the appellants that the Ld. Commissioner (Appeals), has passed the impugned Order-in-Appeal mechanically without discussing the elaborate findings given by the adjudicating authority, and without finding anything wrong with the same. It is their contention that to set aside the order-in-original the Ld. Commissioner (Appeals), ought to have given findings against the legality or otherwise of the order-in-original, which he has not done. There has been no independent application of mind and the impugned order is bereft of any cogent reasons which could have justified the setting aside of detailed and reasoned order passed by the adjudicating authority after considering and discussing the entire gamut of evidences relied by the department, by way of detailed order running into 83 pages. The appellants submitted that the impugned order-in-appeal needs to be set aside and the Order-in-original shall be upheld on this Ground alone.
5. The Appellants further submitted that admittedly for the goods seized under panchnama dated 1st December, 1999 a separate SCN has been issued to the said Shri Bismillah Khan. None of the Appellants herein are among the noticees in the said Show Cause Notice issued in relation to the goods taken over from Kurla, nor the said Shri Bismillah Khan is a noticee in the Show Cause Notice dated 31-5-2000 issued to the Appellants in respect of the impugned goods detained at Thane. According to the appellants the hollowness in the contention of the Revenue that the impugned goods detained at Thane are part of the goods taken over from Kurla is exposed from this undisputable fact.
6. It was also contended by the Appellants that the goods under seizure were not notified under section 123 of the Customs Act, 1962 and therefore burden to prove smuggled nature of the goods was on Revenue, for which no evidence whatsoever suggesting breach of any Customs Barrier was produced. It was thus argued that the confiscation of goods therefore could not sustain in the instant case and in absence thereof, any question of penalty under section 112 could not arise. However, the Ld. Commissioner (Appeal) failed to appreciate this basic postulate of valid confiscation though urged before him as recorded in para 6.2 of his order. The appellants placed reliance in this regard on the instructions issued by the Central Board of Excise & Customs vide Circular dated 14-12-1965, which is still in force.
7. The appellants have drawn my attention to the fact that the statements and evidences pointed by the Commissioner (Appeal) were dealt in extenso in the Order-in-original. It is not the case of the Revenue that there had been any impropriety or illegality in the Order-in-Original. The appellants relied before me on the judgment of Honble Supreme Court in N.J. Suraj Vs State (2004)11SCC346 regarding Identification Parade, wherein it was held that-
3In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon. It was contended that in the instant case the I-Card register bearing photographs among other details was already shown to the witnesses before the Test Identification parade, and thus the same was meaningless and no reliance could be placed thereon.
8. The appellants also contended that the Adjudicating Authority has considered the entire gamut of evidence and assailed the veracity of the statements. Thereafter he has arrived at a just and proper conclusion based on the principles of preponderance of probability.
9. Thus, according to the appellants the order-in-original did not suffer from any infirmity as alleged and the order-in-appeal therefore needed to be set aside.
10. The Ld. Departmental Representative sought to support the order-in-Appeal and contended that Ld. Adjudicating Authority ought to have confirmed the Show Cause Notice based on the statements of the witnesses. The Ld. DR could not however show as to which finding of the adjudicating authority was illegal or improper. The Ld. DR also could not show any evidence which was not already considered by the adjudicating authority. The Ld. DR also could not give any answer to the contention of the Appellants that by not making Shri Bismillah a party in the Show Cause Notice issued in the instant case, the Revenue itself has distinguished the seized goods with the goods taken over from Kurla. The Ld. DR fairly accepted that the seized goods were not among goods notified under section 123 and that therefore burden to prove smuggled nature of the goods was on the Revenue. He suggested that the Commissioner(Appeal) may be directed to hear the Revenues Appeal afresh in a time bound manner.
11. After considering the submissions of both sides and after going through the adjudication order, Revenues appeal against the same, order-in-appeal and the instant appeals, I am of the considered view that the revenue has not discharged its burden in the instant case to prove smuggled nature of the goods. There is no iota of evidence to suggest breech of any customs barrier. Since the smuggled nature of the seized goods has not been established, therefore there cannot be any question of confiscation and consequent imposition of any penalty, whatsoever. Though the matter can be disposed of on this short point, the impugned order-in appeal can be set aside and the order-in-original can be upheld, I feel it necessary to consider the issues raised by the appellants.
12. I find no bones in observing that the test identification parades conducted in the instant case were meaningless as the photographs of the appellants were already shown to the witnesses from the I-card registers. The observations of the Honble Supreme Court in the case of N.J. Suraj (supra) are squarely applicable in the instant case.
13. My attention was drawn to the fact that the Appeal before the Ld. Commissioner (Appeal) is nothing but verbatim reproduction of the Show Cause notice, which neither analyzed the findings of the adjudicating authority, nor pointed out any infirmity whatsoever in the same. Further, the Ld. Commissioner (Appeals) was influenced by the imposition of penalty by disciplinary authority on some of the appellants, which issue was extraneous to the case before him. The two proceedings were under different enactments which are for different purposes. What is expected from the Commissioner (Appeals) is analysis of the order-in-original on the grounds raised in Appeal, by independent application of mind on the facts and circumstances in light of the evidences available. However, no such exercise has been done by the Ld. Commissioner (Appeals).
14. The impugned Order-in-Appeal has been mechanically passed without any analysis of the elaborate findings given by the adjudicating authority which are legal and proper in the facts and circumstances of the case. After careful perusal of the proceedings, I am convinced that each and every issue was considered in extenso by the Ld. Adjudicating authority in its order-in-original.
15. In my considered view the statements of witnesses cannot be accepted as a gospel truth in absence of material corroboration, more so when the statements of the appellants themselves are exculpatory. Admittedly, there are enough inconsistencies in the alleged spot panchnama drawn by Shri Saraf. The findings of the adjudicating authority are elaborate, legal and proper. The Revenue failed to show any averment directed to be considered by the Commissioner (Appeal), which was not already considered by the adjudicating authority. By not making Shri Bismillah a party in the Show Cause Notice issued in the instant case, the Revenue itself has distinguished the seized goods with the goods taken over from Kurla. I find that in teeth of the undisputed glaring inconsistencies recorded in para 6.3 of the impugned order-in-appeal by the Ld. Commissioner (Appeal) himself, there was no reasonable ground available to him to set aside the order-in-original for de-novo consideration.
16. In view of the above reasonings, I am in complete agreement with the findings of the adjudicating authority, apart from the confiscation of the goods.
17. The appeal of the Revenue filed before the Commissioner (Appeal) had no merits and contains no ground requiring fresh consideration, in view of the above findings.
18. To my mind it appears that nothing has been proved against the appellants, they have already suffered for nearly nine years. Therefore in the interest of justice, the order-in-appeal is set aside, and the order-in-original is upheld to the above extent. The appeals are allowed as indicated.
(Pronounced in Court) (M. V. Ravindran) Member (Judicial) pj 1 10 2