Custom, Excise & Service Tax Tribunal
) Sri Chandreswar Prasad vs Commr. Of Customs, Patna on 2 May, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Customs Appeal Nos. C/76510-76513/2014
(Arising out of the Order-in-Appeal No. 756-760/Pat/Cus/Appeal/2014 dated-23/07/2014 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Patna)
For approval and signature of:
SRI H.K. THAKUR , HONBLE TECHNICAL MEMBER
======================================================
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 ?
1) Sri Chandreswar Prasad
2) Sri Nandlal Kumar
3) Sri Ramchandra Kandoi
4) Sri Bhola Shah
APPELLANT(S)
VERSUS
Commr. of Customs, Patna
RESPONDENT(S)
APPEARANCE
Sri N.K. Choudhary, Advocate
FOR APPELLANT(S)
Sri S.N. Mitra, A.C. (A.R.)
FOR THE RESPONDENT(S)
CORAM:
SRI H.K. THAKUR, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 2/05/2016
ORDER NO : FO/A/75342/2016-75345/2016
PER SRI H.K. THAKUR
These appeals have been filed by the appellant against Order-in-Appeal No. 756-760/Pat/Cus/Appeal/2014 dated-23/07/2014 passed by Commissioner (Appeals) Patna as first appellate authority. Under this O-I-A dated 23/7/2014, Commissioner (Appeals) has upheld Order-in-Original No. 05-CUS/ADC/MTH/2014 dated-25/4/2014 passed by the Adjudicating authority.
2. Shri N.K. Choudhary (Advocate) appearing on behalf of the appellant argued that appellant Shri Ramchandra Kandoi is the proprietor of M/s. Shree Shyam Trading Company, Bairgania who is carrying out the business of trading in clothes and appellant Shri Chandeshwar Prasad is the staff of Shri Ramchandra Kandoi. That appellant Nandlal Kumar is the driver of vehicle No.BR 05 G2552 found transporting the seized goods and Bhola Shah is implicated based on the statement of the driver and helper Shri Ranjit Kumar. It was submitted by Learned Advocate that officers of E Coy 13th BN SSB Pantoka intercepted one mini truck BR 05 G 2552 loaded with bundles of clothes and was found moving towards Motihari. That during checking of vehicle one bill No. 733 dated 11/12/12 was recovered from the vehicle and it was issued by M/s. Vinayak Vastralaya, Inder Chowk, Kathmandu. That though this document was issued in Nepal but para 4.6 at page 10 of the Order-in-Original refers it to be issued by Mehak Enterprises, Ludhiana to Vinayak Bastralaya, Kathmandu, Nepal.That this document did not belong to the appellant and was disowned. That this document was not made relied upon document by the department. That on 16/4/2013 itself the goods and vehicles were handed over to the Customs, Motihari.That both the driver and the helper stated before Customs that the goods were loaded from M/s. Mata Transport at the instance of Chandeshwar Prasad, staff of M/s. Shyam Trading Co. of Bairgania. They also stated that goods would be transported to the godown of Shri Bhola Shah at Bairgania and would then be exported to Nepal through Bullock carts.That they have transported such goods on regular basis for about 12 to 15 times in a month. That both the driver and the helper did not have any personal knowledge of the goods being sent to Nepal and their statements have to be considered only a hearsay evidence. That the source of information of goods to be sent to Nepal has not been disclosed by the driver and the helper. That on 17/4/13, the vehicle seized on 16/4/2013 was released provisionally. That goods seized on 16/4/2013 were also released to M/s. Shyam Trading Co. on 26/4/2013. That by a statement dated 29/4/2013, Bhola Shah refuted the statement of Ranjit Kumar (Helper) that the goods were to be transported to his godown as he does not own any godown in Bairgania. That on 30/4/13, the transporter also confirmed that 55 bundles of cloth were booked for transporting to Bairgania.That there is no evidence suggesting attempt to export of seized goods to Nepal except the statement of driver and helper of the seized vehicle. Learned Advocate made the bench go through para 19 of the Apex Courts decision in the case of Mohtesham Mohd. Ismail Vs. Special Director, Enforcement Directorate [(2007) 8 Supreme Court cases 254] to argue that a confession of a co-accused person cannot be treated as a substantive evidence and is acceptable only when other evidences also suggest the act. That in the present proceedings there is no other independent corroborative evidence to support the statement of driver and helper. On this issue Learned Advocate also relied upon para 17 of the case law Assistant Collector of Customs Vs. Amrik Singh [2014 (301) ELT 170 (P&H)].
2.1 Learned Advocate further relied upon the following case laws to support his arguments that there is no attempt to export the goods as the goods were not moving towards the border and were going to the godown of one of the appellants:
(i) Commr. of Customs (Prev.), Kolkata Vs. Md. Abdul Salem -2005 (186) ELTY 293 (Tri.-Kol.)
(ii) Commr. of Customs, W.B. Vs. Swapan Kr. Debnath
-2002 (148) ELT 840 (Tri.-KOl.)
(iii) Md. Latibur Rahaman Vs. Commr. of Customs (Prev.), West Bengal, Kolkata -2004 (171) ELT 65 (Tri.-Kol.)
(iv) Collector of Customs (Prev.), West Bengal Vs. Kamala Ranjan Saha 2003 (161) ELT 1047 (Tri.-Kolkata)
(v) State of Maharashtra-Vs.-Mohd. Yakub- 1983 (13) ELT 1637 (S.C.)
(vi) Mohtesham Mohd. Ismail-Vs.-Spl. Director, Enforcement Directorate & Others- (2007) 8 SCC 254.
2.2 That appellant Shri Ramchandra Kandoi came forward with the purchase documents which were acceptable as per case law Ramkrishna Dutta Vs. C.C. (Prev.), Kolkata [2007 (220) ELT 253 (Tri.-Kolkata)]. That no investigation was extended to the persons from whom the seized goods were purchased.
3. Shri S.N. Mitra, A.C. (A.R.) appearing on behalf of the Revenue argued that no documents of licit acquisition of clothes were produced at the time of interception. That document No. 733 recovered from the vehicle indicated Vinayat Vastralaya, Kathmandu, Nepal which means the truck was otherwise going to Nepal. That in the statement, driver and the helper has stated that they undertake such trips 12-15 times in a month. That no cross examination of driver/helper of the vehicle was sought by appellants. That documents produced by appellant Ram Chandra Kandoi were without signature and issue date and were not found acceptable by the Adjudicating authority in para 4.11 of Order-in-Original dated 25/4/14. Learned A.R. thus strongly defended the orders passed by the lower authorities.
4. Heard both sides and perused the case records. The issue involved in these proceedings is whether clothes seized by the department on 16/4/2013 from vehicle No. BR -05-G-2552 were meant for export to Nepal illegally. Learned first appellate authority has passed following observations and order on the issue under Order-in-Appeal dated 23/7/2014 while rejecting appeals of the appellants:-
Heard both sides. I find that the Ld. Adjudicating Authority observed in para 4.01 of his order that a bill bearing No. 733 dated 11.12.2012 issued by M/s. Vinayak Vastralya of Kathmandu was recovered at the time of seizure and no other documents were produced. The appellants later on disowned the said Bill No. 733. However, I hold that disowning the bill simply does not prove that the goods were not meant for illegal export. I hold that the disowning the bill simply does not prove that the goods were not meant for illegal export. I hold that the impugned order is legal and proper and I do not intend to interfere with it. 4.1 It is not coming out from the above order passed by the first appellate authority as to what evidences made it convincing that seized goods were meant for illegal export. From perusal of records it is observed, that the evidences that seized goods were meant for export, are the statements of the driver of vehicle No. BR-05-G 2552 and the helper (Noticee No. 1 & 2 to the show cause notice). These statements, as brought out in para 2 & 3 of the SCN dated 26/9/2013, convey that goods were to be taken to Nepal through bullock carts and that goods of similar nature were brought regularly and transported to Bargania by them at an average of 12-15 times a month . The place Bargania is the place where owner of the goods Shri Ramchandra Kandai is trading in clothes. In para 5 of the SCN it is mentioned that Shri Ranjit Kumar (Helper) stated that articles of clothes were meant for Nepal. The evidences of both the driver and the helper are hearsay evidences without any corroboration and authenticity. It is not on record as to from where the driver & helper got the conviction that seized goods were to be sent to Nepal and whether on earlier occasions they had taken similar consignments of clothes to Nepal. On the contrary, the documents produced by the owner of seized clothes regarding licit acquisition of seized goods were not at all investigated by the department.
4.2 On the issue of confession of a co-accused, Apex Court in the case of Mohtesham Mohd. Ismail-Vs.-Spl. Director (supra) made following observations:
Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deductible therefrom (See Haricharan Kurmi Vs. State of Bihar, Haroom Haji Abdulla Vs. State of Maharashtra and Prakash Kumar Vs. State, of Gujarat.) 4.3 Subsequently, on the same issue Punjab & Haryana High Court in the case of Amrik Singh [2014 (301) ELT 170 (P&H)] made the following observation :
The question arises whether the admission of co-accused under Section 108 of the Customs Act can be the basis of conviction of other co-accused . The Learned trial Court has rightly held that statement of co-accused under Section 108 of the Act against the co-accused is a weak type of evidence and conviction of co-accused cannot be based on the uncorroborated statement of co-accused. Counsel for the appellant (Customs) is fair enough to concede that there is no corroborative evidence against Amrik Singh @ Chamku and Balwinder Singh for warranting their conviction under Section 135 of the Customs Act except statements of co-accused under Section 108 of Customs Act.
5. On the issue of producing documents subsequently, this bench in the case of Ram Krishna Dutta Vs. C.C. (prev.) , Kolkata [2007 (220) ELT 253 (Tri-Kolkata) held as follows in para 4 :
After considering submissions from both sides, I find that the show cause notice itself records that the driver was carrying some documents and that one of the appellants Shri A.N. Singha Ray has also submitted some documents subsequently. However, the impugned order makes no mention of these documents and proceeds to conclude that the sugar was being carried without any licit documents/papers. After considering the entire facts and circumstances of the case, I am of the opinion that no case has been made out to prove attempt to export sugar and hence the orders passed by the lower authorities cannot be sustained. Consequently, the impugned order is set aside and the appeals are allowed with consequential benefit to the appellants.
6. In the absence of any other corroboration, the statements of co-accused driver and helper of vehicle No. BR 05G 2552 cannot be made the clinching evidences to decide the case against the appellants. There is also no evidence on record whether the seized goods were actually moving towards the border. Rather as per the statements of the driver and the helper also the goods were being taken to Bairgania where claimant M/s. Shyam Trading Company is doing trading in clothes. In the light of relied upon case laws it cannot be held that there was any attempt to export seized clothes.
7. In view of the above observations and settled proposition of law, department has failed to establish that the goods seized from truck No. BR 05 G 2552 were meant for illegal export to Nepal. Accordingly, all the appeals filed by the appellants are required to be allowed by setting aside Order-in-Appeal dated 23/7/2014.
8. Appeals filed by the appellants are allowed with consequential reliefs, if any.
(Operative part of the order already pronounced in the Court) Sd/- 3/5/16 (H.K. THAKUR) TECHNICAL MEMBER k.b/-
` Customs Appeal Nos. C/76510-76513/2014 2