Customs, Excise and Gold Tribunal - Calcutta
Shri Laxmi Prasad, Shri Vinode Kumar And ... vs Cc, Patna on 19 January, 2001
ORDER
Smt. Archana Wadhwa.
1. All the three appeals are being disposed of by a common order as they arise out of the same set of facts and circumstances.
2. Vide the impugned orders four pieces of gold totally valued at about Rs.2.72 lakhs (approx.) have been confiscated absolutely on the findings that the same is smuggled gold. Shri Laxmi Prasad is the owner of the gold in question and has been penalised to the extent of Rs.60,000/-. Penalty of Rs.25,000/- each has been imposed on the other two appellants Shri Vinod Kumar, from whom the gold in question was recovered on interception, while he has travelling in a bus. It is alleged by the Revenue that Shri Laxmi Prasad and Shri Ram Chandra Paswan were travelling in a motor cycle and were following the bus. The motor cycle in question has also been confiscated.
3. Shri B.N.Chattopadhyay, ld.consultant appearing for all the three appellants submits that the gold in question was not having any foreign markings and as such the very first step of proving the gold to be of foreign origin is missing. He submits that the gold bars bore the marking of flower (Lotus) which indicates that the gold bars are of Indian origin. Ld.consultant submits that the gold bars belonged to the grandmother of Shri Laxmi Prasad and this fact was disclosed by the said appellant in his very statements made before the Customs officers. Inspite of that no enquiries were made by the Revenue with the grandmother of the appellant. He also submits that the purity of the gold bar was found to be 98% as ascertained by the goldsmith, which fact also indicates that the gold in question was of Indian origin. He further submits that though the show cause notice did not make any reference to assay report indicating purity of the gold to be 992.2 per mille, the said report has been relied upon by the adjudicating authority for the first time in the impugned order without supplying them a copy of the same. He submits that the entire case of the Revenue is based upon the statements of Shri Vinod Kumar, who is an illeterate person and his statement has been recorded under duress and coersion. In any case the said statement was retracted by him immediately and as such has lost its evidentiary value. He also referred to the circumstances and variation in timings as reflected in seizure memo, panchnama and the statements to show that there were various discrepancies in the prosecution story leading to strong doubts. It is the contention of the appellant that though all these points were raised before the appellate authority, he has dismissed their appeal in a cryptic manner without discussing all the submissions made before him. Shri Chattopadhyay refers to a number of decisions of the Tribunal to butteress his point that the appellate authority was under a legal obligation to disclose the reasons in support of the order. Failure to disclose the points raised by the appellant has vitiated the order.
4. It has been further contended by Shri Chattopadhyay that even according to the prosecution story, Shri Laxmi Prasad and Shri Ram Chandra Paswan was travelling in a motor cycle behind the bus. Inasmuch as nothing has been recovered from the motor cycle, the same cannot be legally confiscated and also no penalty can be imposed upon Shri Ram Chandra Paswan based upon the uncorroborated statement of the co-accused.
5. Shri A.K.Chattopadhyay, ld.JDR appears for the Revenue, who reiterates the findings of the authorities below.
6. I have considered the submissions made from both the sides. I find a lot of force in the pleas raised by the ld.consultant. The points now being raised before me were placed before the Commissioner(Appeals), who has reproduced the same in his impugned order but have not given any reasons for discarding the same apart from recording that he is of the view that there is no strong justification for altering the order of the adjudicating authority. There is no discussion of the various points raised by the appellant before him. As such I fully agree with the ld.consultant that the appeal has been dealt with by the appellate authority in a casual manner without due consideration of the points raised by the appellant and the merits of the disputes and the same needs to be set aside.
7. The appellants have strongly contended about the foreign origin of the gold and have also submitted that the same carries a mark of flower (Lotus). Further the purity of the gold also indicates the Indian origin of the same as per the appellants. Mint report relied upon by the original adjudicating authority has not been supplied to the appellants. All these issues are required to be decided by the Commissioner(Appeals), to whom the matter is being remanded for fresh consideration. I also find force in the appellants' submission that the motor cycle in question admittedly being not involved in transportation of the smuggled gold, is not liable to confiscation under the provision of section 125 of the Customs Act. As this point has also not been looked into by the appellate authority I direct him to do so. With these observations I set aside the impugned order and remand the matter to the Commissioner(Appeals) for passing the order a fresh after considering the pleas raised by the appellants. All the three appeals are allowed by way of remand.