Custom, Excise & Service Tax Tribunal
Shri Sudarsan Jana vs Commissioner Of Customs, (P) W.B on 9 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No C/75084/16
(Arising out of Order-in-Original No. 38/CUS/CC(P)/WB/2015 date 07/10/2015 Passed by the Commissioner of Customs (Prev), WB, Kolkata.
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
HONBLE SHRI P. K. CHOUDHARY 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
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?
Shri Sudarsan Jana.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs, (P) W.B.
Respondent (s)
Appearance:
Shri Arijit Chakraborty, & Sh. N. Choudhary, Advocate the Appellant (s) Shri K. C. Jena, ADC (AR) for the Respondent (s) CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL) HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL) Date of Hearing/Decision: 09.08.16 ORDER No.FO/A/75852/16 Per Shri H.K.Thakur This appeals has been filed by the appellant with respect to OIO No. 38/CUS/CC(P)/WB/2015 dt 7/10/2015 passed by CC (Prev), West Bengal, Kolkata as Adjudicating authority. Under this OIO dt 7/10/15, interalia, Indian currency of Rs. 59,41,550/- claimed by the appellant, has been absolutely confiscated under Sec 113 and a penalty of Rs. 1,18,83,100/- has also been imposed upon the appellant under 114 AA of the Customs Act 1962.
2. Sh. Arijit Chakraborty (Advocate) and Sh. N. Choudhary (Advocate) appeared on behalf of the appellant Sh. Arijit Chakraborty argued that BSF officers of Amudia BOP acting on an information intercepted a bus on 20/12/2013, havening registration No. WB-25B 5282 , on Rout No. DN-35 at Tentulia Bridge which was going from Barasat to Balli. That the place of interception was 7-8 Km. from Indo-Bangladesh Border. That as per the language of the show cause notice BSF officers asked the passengers but nobody came forward to claim the ownership of two bags of while metal & 2 bags of Indian currency found in the bus. That on 21/12/2013 the white metal, believed to be silver, & Jewellery valued at Rs 7,71,492/- & Indian currency of Rs. 59,41,550/- were handed by BSF to Customs & were seized under Sec 110 of the Customs Act 1962. That Indian currency was seized as liable to confiscation under Sec 121 of the Customs Act 1962 as sale proceeds of smuggled goods. That on 20/5/14, five months from the date of interception, one Sh. Sudarsan Jana of North 24 Parganas district claimed the ownership of the seized currency of Rs. 59,41,550/-. That appellant was summoned and in his statement dt 1/4/14 explained the source of currency he claimed and also gave the reasons as to why he was late in claiming ownership. Learned Advocate made the bench go through his statement reproduced in the show cause notice. That all the persons disclosed by the appellant in his statement were summoned and all of them corroborated the statement dt 1/4/14 of the appellant except minor discrepancies. Learned Advocate made the bench go through internal pages 3 &4 of the show cause notice dt 28/11/14 where the statements of all persons interrogated have been recorded. Learned Advocate also argued that though the Indian currency of Rs. 59, 41,550/- was seized under Sec 121, as sale proceeds of smuggled goods, but confiscation was proposed under Sec 113 of the Customs Act 1962 without specifying the subsection under which confiscation is proposed. Case of the Appellant is that Adjudicating authority has only interpreted the statements of the interrogated persons and the documents supplied by the appellant to arrive at the conclusion that version of the appellant is not acceptable and he absolutely confiscated the Indian currency under Sec 113 of the Customs Act 1962. That there is no evidence on record that the Indian currency claimed by the appellant was attempted to be exported and the entire findings of the Adjudicating authority are based on assumptions, presumptions and surmises without any documentary corroboration. That Adjudicating authority has not given any findings as to what violation of the provisions of Customs Act 1962 has been committed by the appellant. That carrying Indian currency within Indian Territory is not an offence under the Customs Act 1962.
2.1. On the issue of attempt to export Learned Advocate relied upon the following case laws to argue that neither there was any preparation nor an attempt to export seized Indian currency:-
(i) State of Maharastra Vs Mohd. Yakuls & other [1983 (13) ELT 1637 (S.C)].
(ii)Abhyanand Mistri Vs. State of Bihar [AIR 1961 SC 1698].
(iii) Imam Baksh Mondal Vs CC(P) West Bengal [2001 (137) ELT 926 (Tri-Kolkata)].
(iv) Md. Liakat Ali Vs CC (P) Kolkata, West Bengal [2008 (222) ELT 295 (Tri-Kolkata)].
2.2 That Indian currency is not notified under Sec 123 or any other provision of the Customs Act 1962 and show cause notice does not adduce any evidence to indicate as to how Indian currency was attempted to be exported. That basis of findings given by the adjudicating authority have not been alleged in the show cause notice. That grounds for confiscation not mentioned in the show cause notice will make the attempt of Adjudicating authority going beyond the scope of show cause notice which is not permissible as per case law CC (Mumbai) Vs Toyo Engineering India Ltd [2006 (201) ELT 513 (S.C)].
2.3. That late filing of claim has been explained by the appellant under his statement dt 1/9/2014 which is admissible as per following case laws:-
(i) Md. Bellal Hossain Vs CC (Prev) West Bengal {2002 (146) ELT 192 (Tri-Kolkata)]
(ii) Ekram SK Vs CC (Prev) WB [2010 (251) ELT 79 (Tri-Kolkata)] That late filing of ownership claim was properly explained and can not make the Indian currency as attempted to be exported out of India.
3. Sh. K. C. Jena ADC (AR) appearing on behalf of the Revenue argued that all the documentary evidences produced by the appellant and statements, for claiming the ownership of the seized Indian currency and its legal acquisition, is forged and fabricated after the seizure. That appellant did not come forward to claim the seized currency for five months. That various discrepancies found in the statements of persons & documents furnished have been discussed elaborately by the Adjudicating authority. That the documentary evidences produced by the appellant is only a cover up exercise and has been correctly rejected by the Adjudicating authority while absolutely confiscating the goods and imposition of penalty. It was also argued by the Learned Advocate that area of 50Km from the border has been notified as specified area under Sec 11 H (C) of the Customs Act 1962 read with notification No. 31/2008-Cus(NT) dt 25/03/2008. That export of Indian currency is prohibited & was brought into specified area. Learned AR defended the OIO dt 1/10/2015 passed by the Adjudicating authority.
4. Heard both sides & perused the case records. The issues involved in the present proceeding are.
(i) Whether absolute confiscation of Rs. 59,41,550/- Indian currency has been correctly made by the Adjudicating authority under Sec 113 of the Customs Act 1962, by rejecting the claim of the appellant?
(ii) whether penalty has been correctly imposed upon the appellant under Sec 114 AA of the Customs Act 1962 for making a false claim & submitting forged documents. ?
4.1. So for as point at Para 4 (i) above is concerned it is observed from the contents of the show cause notice dt 28/11/14 that no evidence is existing in the body of the show cause notice as to why seized currency is liable to confiscation under Sec 113 of the Customs Act 1962. If the appellant is not the owner of the seized currency than how this currency was attempted to be exported out of India and by whome Adjudicating authority in his entire discussion & finding portion of the OIO dt 1/10/2015 has been justifying that claim of the appellant & the documents furnished by the appellant are faulty. In Para- Xi, on internal page 11 of the OIO dt 7/10/15, it is mentioned that confiscation of seized currency is proposed for illegal exportation of goods when such a wording is not used at all in the charging paragraph on internal page 5 of the show cause notice dated 28/11/2014. Another dimension added by Learned AR appearing on behalf of the Revenue, is that currency brought into a specified area notified under a notification is prohibited, when such an aspect has not been even touched by the Adjudicating authority. Specified area specified and notified in notification No. 31/2008-CUS(N.T)dt 25/3/2008 has to be read with Sec 11 H (C), Sec 11 H (e) & Sec 123 of the Customs Act 1962 before burden of proof can be said be lying on the appellant or any other person. As Indian currency has not been notified as specified goods under Sec 11 H (e) or notified under Sec 123 of the Customs Act 1962, it cannot be said that bringing of goods into a specified area are liable to confiscation. If the interpretation given by learned AR is accepted then each & everything brought into specified area will be liable to confiscation. There is no evidence on record at all in the show cause notice as well as in the Adjudicating order as to how seized currency is liable to confiscation under Sec 113 of the Customs Act 1962. No subsection of Sec 113 has been specified in the show cause notice under which Indian currency seized is charged to be liable to confiscation. Under the circumstances confiscation of seized India currency is not justified and order to that extent passed by the Adjudicating authority is liable to be set aside.
4.1.1. So for as ownership claim of the appellant is concerned it is observed that appellant has claimed the ownership of seized Indian currency, though belatedly, alongwith the source of licit acquisition of the same. Adjudicating authority in the last Para of discussion & finding also held that since no claimant has come forward the seized goods were designed to be illegally exported out of the country. Such an allegation is not contained in the show cause notice. It has been held by this bench in the case of Md. Bellal Hossain Vs CC (Prev) WB (Supra) and Ekram S. K. Vs CC (Prev) WB (Supra) that late filing of ownership claim does not affect the case of the person claiming ownership. Once no other claimant forward then the claim of the present appellant can not be rejected and seized Indian curecny can not be held to be unclaimed. Adjudicating authority may be right in his observations that documents furnished by the appellant are not sufficient to establish licit acquisition of seized currency but that does not take away the right of the appellant to claim the ownership. In the absence of any other claimant there is no basis denying the ownership title of seized currency to the appellant. Customs Act 1962 is not the statute for confiscation of seized currency only on the reason that legal acquisition of currency is not established by the appellant. Appellant in his statement dt 1/9/14 during investigation stated the reasons for delay in staking his claim and also the source of the seized Indian currency. The version of the appellant was corroborated by other statements recorded and documents furnished by the appellant, except minor variations. In the light of above observations legal proposition of law & absence of any other claimant it is held that appellant is the rightful owner of the seized Indian currency. There is no evidence on record that seized currency was meant to be exported out of India. Only finding regarding confiscation of Indian currency; given by the Adjudicating authority in Para-xi on internal page 11 of the OIO dt 7/10/2015, also does not throw any light as to why seized Indian currency is liable to confiscation. It is not established by the department that documents produced by appellant are forged & fabricated when the persons giving these evidences have confirmed the authentically of the documents by giving Sec 108 statements before the investigation. Further, there is no evidence on record that seized Indian currency was attempted to be exported out of India by the appellant as per case laws relied upon by appellant is Para 2.1 above. Accordingly absolute confiscation of the seized currency of Rs. 59, 41,550/ is set aside and is ordered to be released to the appellant.
5. So for as imposition of penalty under Sec 114 AA of the Customs Act 1962 is concerned there is no evidence of forged nature of documents produced by the appellant except the analysis made by the Adjudicating authority. Customs Act 1962 is not an enactment to penalise a person for forgery, if any. Secondly, it is already held above that claim of the appellant was not false in the absence of any other claimant. It is observed from the show cause notice dt 28/11/2014 that allegation of forging of documents was not at all made in the show cause notice. Adjudication order is thus also required to be set aside, as per Apex Court observations in Para-16 of case law CC Mumbai Vs Toyo Engineering India Limited (Supra), on the grounds that Adjudicating authority has gone beyond the scope of show cause notice.
6. In view of the above observations and settled proposition of law appeal filed by the appellant is allowed with consequential relief, If any.
(Operative part of the order was pronounced in the open court.)
(P.K. CHOUDHARY) (H.K. THAKUR)
JUDICIAL MEMBER TECHNICAL MEMBER
T.K
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Appeal No.C/75084/16