Custom, Excise & Service Tax Tribunal
) Shri Goutam Karmokar vs Commissioner Of Customs(Prev.), West ... on 31 December, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos.Cus.Ap.407-408/09
(Arising out of Order-in-Appeal No.Prev./Cus-77 & 78/2009 dated 29.05.2009 passed by the Commissioner of Customs(Appeals), Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE S.K. GAULE, MEMBER(TECHNICAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
1) Shri Goutam Karmokar
2) Md. Sahin Akhtar
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Prev.), West Bengal
Respondent (s)
Appearance:
Shri K.P. Dey, Advocate for the Appellant (s) Shri M.B. Bal, Authorized Representative (JDR) for the Revenue (s) CORAM:
Honble Shri S.K. Gaule, Member(Technical) Date of Hearing/Decision :- 31.12.2009 Date of Pronouncement :- 29.01.2010 ORDER NO. Per Shri S.K. Gaule.
1. Heard both sides.
2. The two Appeals are filed against the Commissioner (Appeals) Order. Commissioner (Appeals) has upheld the order of lower Authority.
1) The lower Authority has ordered absolute confiscation of two biscuit of yellow metal so recovered from Appellant No.1 and also imposed penalty of Rs.10,000/- against him.
2) He ordered absolute confiscation of Bangladesh currency recovered from Appellant No.2 and also imposed penalty against him.
The Appeals are being disposed of by a common order.
3. Penalty was also imposed against two other persons but they are not in Appeal.
4.1 Briefly stated facts of the case are that on 28.03.2004 the BSF personnel of 15th Bn and police personnel of Dinhata Police Station seized 22 carat purity valued at Rs.71,600.00 which did not have any foreign marking from the possession of Shri Sahin Akhter while he was traveling by a route bus plying between Dinhata and Cooch-behar.
4.2 On 28.03.2004 at about 14.30 hrs the said BSF & Police officials seized from the residence of Shri Gautam Karmakar, Bangladesh taka 2,53,099 (of different denomination).
4.3 Both the said piece of gold lump and Bangladesh Taka were seized vide P.S. Dinhata case No.158/04 of 29.03.04 and that both the persons above named were arrested on 29.03.04 by Police and produced before the court of SDJ.
4.4 On 01.04.2004, another piece of gold lump weighing 1Lt.350 gm (22 caret) valued at Rs.72,209.00 was seized by the BSF personnel and Police from a place near the door of the house of Shamine Akhter (vide brief fact of show cause notice).
4.5 The said goods were tagged in the same case by Dinhata P.S. However, on 27.04.2004 the Honble Court of Session Judge, Cooch-behar, under reference Misc Case No.67/2004 ordered the case to be handed over to the Customs authority, and that on 04.08.2004 handed over the case to Dinhata Customs PU which subsequently seized by Dinhata Customs P.U. vide seizure Case No.01/Imp/CL/Pol/Cus/DHP/04 dated 04.08.2004.
5. The Appellants contended that these two cases are different cases and not linked with each other. Therefore they should be dealt with separately.
5.1 The Appellants also contended that the show cause notice is hit by limitation of time prescribed under Section 110(2) of Customs Act, 1962 since it was issued after six months after the seizure made by Police and BSF.
6. Appellant No.1 contended that Section 123 was not invoked. Gold as per provisions of Notfn.No.4/93-Cus.(N.T.) dt.15.01.1993 has been excluded from the list of goods covered under Sec.123 of Customs Act, 1962, and that in the CESTAT, West Zonal Bench, Mumbai in the case of Kadarbhai J. Vora Vs CC Ahmedabad (2004 (170) E.L.T. 555), Gold has been held as non-notified item, and that burden is on the department to prove the smuggled nature of gold.
6.1 Appellant No.1 also contended that Seized Gold lumps are non-homogenous in weight and are 22 caret purity while foreign gold bars are of equal weight having foreign markings inscribed thereon, but no foreign inscription is embossed on seized gold lumps which it is submitted assertively is indigenous goods, not confiscable under Sec. 111(d) of Customs Act, 1962.
7. Appellant No.2 contended that Bangladesh Taka seized from possession of Shri Gautam Karmakar amounted to 2,53,099 is within US-Dollar 10,000/- which can be brought in India, and it shall not be necessary to make any declaration which is required in the event of bringing foreign currency exceeding 10,000 US Dollar. Shri Nezamul Haque Billu of Bangladesh on his visit to India (for incurring his treatment of Cancer at Appolo Hospital at Chennai) brought it with him when he came to India via Chanrabandha under cover of his Passport. Shri Gautam Karmakar could not be held to have acquired Bangladesh Taka illegally. The Appellant No.2 also contended that Notification issued by the Central Government, Ministry of Finance, GSR 76 F1/107/EC 73 dated 1st January, 1974 permitting importation of foreign currency below 10,000 US-Dollar without any declaration. The Appellant No.2 also contended that for confiscation of Bangladesh Taka the provisions of FEMA, 1999 was not invoked. Therefore Bangladesh Taka amounting to 2,53,099 is also not confiscable under Sec. 111(d) of Customs Act, 1962, read with Sec.3 & 4 of FEMA, 1999.
8. I have carefully considered the submissions of both sides and perused the records.
8.1 At the threshold, I agree with the learned Advocate that these cases are two different cases, since it has never been the case of the Department that the foreign currency seized is sale proceeds of any smuggled goods nor it is related to the case of Appellant No.1.
9. I find that there is no dispute that said two gold biscuits were recovered from Appellant No.1 by BSF and Police personnel. I also find that there is no dispute that the said gold biscuits did not have any foreign marking. I further find that the lower Authority has himself referred to these so called gold biscuits as to two biscuits of yellow metal (believed to be gold) throughout in his impugned order. The Appellant No.1, regarding melting of ornaments submitted that he has got it done from another notice Shri Gopal Ravidas who has later on deposed that he has not melted or converted any gold ornaments into biscuits. Shri Gopal Ravidas however admitted that he had given a challan dated 27.01.2004 duly signed by him to Appellant No.1 for the said two biscuits. No further investication has been made by the department thereafter . Thus department could not adduce any evidence whatsoever to prove the said two biscuits were smuggled into country. Therefore the presumption regarding the smuggled nature of seized gold under Section 123 of Customs Act was not invocable. In view of the ratio of law laid down by Apex Court in the case of Gyan Chand v. State of Punjab 1983(13) ELT 1365(S.C.) as well as other cases such as Ram Lubhaya vs. CC, New Delhi 2002 (147) ELT 807 (Tri.), A.N. Agarwal vs. CC, Kanpur 2003 (157) ELT 274 (Tri.) and Tulsi Das Agarwal vs. CC 2003 (158) ELT 725 and in view of the above discussion neither the seized gold biscuits could be legally confiscated and the Section 111 (d) of C.A. 62 nor any penalty could be imposed on the Appellant.
9.1 Consequently the commissioner (Appeals) order is set aside to the extent of seizure of the said two gold biscuits and penalty against Shri Gautam Karmakar. Appeal is allowed to the extent with consequential relief.
10. As regard seizure of foreign currency the Appellant No.2 has contended that the show cause notice was issued under Section 111(b) and Section 111(d). However, the confiscation of foreign currency was ordered under these Sections read with FEMA. The Appellant contended that the seizure of gold and foreign currency are two different cases. I find that it has never been the case of the Department that the foreign currency seized is sale proceeds of any smuggled goods nor it is related to the case of Appellant No.1. Further Sri Nezamul Haque Bilu resident of Bangladesh has submitted an affidavit affirmed before public notary, Jalpaiguri stating that he brought the foreign currency with him on his visit to India for incurring his treatment of Cancer at Appolo Hospital at Chennai when he came via Chanrabandha under cover of his Passport. The lower adjudicating authority absolutely confiscated the foreign currency without considering the affidavit by Sri Billu. The matter requires reconsideration by the lower adjudicating authority . The impugned order in respect of seizure of foreign currency is set aside and the case is remanded to the lower adjudicating authority to decide afresh after affording an opportunity of hearing to the appellant. The Appellant No.2 has contended that Notification issued by the Central Government, Ministry of Finance, GSR 76 F1/107/EC 73 dated 1st January, 1974 permitting importation of foreign currency below 10,000 US-Dollar without any declaration. The foreign currency is not a restricted item. Lower adjudicating authority should keep these aspects in mind while deciding the matter afresh. To this extent the appeal is disposed of by way of remand .
11. The Appeals are accordingly disposed of.
(Pronounced in the open court 29.01.2010.)
Sd/
(S.K. GAULE) MEMBER(TECHNICAL)
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Appeal No.C.A.407-408/09