Customs, Excise and Gold Tribunal - Calcutta
Vinay Tools Traders vs Commissioner Of Customs (Preventive), ... on 26 December, 2001
Equivalent citations: 2002(82)ECC400
JUDGMENT
1. Briefly stated the facts of the case are as under:-
1.1 The Customs officers visited the premises of a transporter company M/s. Inland Road Transport (P) Ltd., Calcutta and seized diamond wheel (dry) marked DSK of foreign origin. The said goods were booked by one M/s. Hardware Supply Syndicate, Calcutta.
1.2 Subsequently the appellant M/s. Vinay Tools Traders vide their letter dt. 12.6.98 addressed to the Commissioner of Customs claimed the ownership of the diamond wheel in question and submitted that the same was booked by them with the transporter company under a proper receipt; that the transporter company had wrongly shown the despatcher as M/s. Hardware Supply Syndicate on account of mixing of the bills; that the goods in question were purchased by them from one M/s Neha Trade Centre, Mumbai under their regular invoice dt. 12.11.97 and 24.4.98, for which the payments were made by bank draft. The appellants also attached a copy of the freight receipt No. 5190 dt.28.5.98 showing the booking of the goods with M/s. Inland Road Transport Pvt. Ltd..
1.3 That on the basis of the above claim investigations were conducted and statement of the partner of M/s. Vinay Tool Trader was recorded. The appellants during the course of investigation produced the bank statements showing payment to M/s. Neha Trade Centre, Mumbai. It was also brought on record that M/s. Neha had purchased the goods from M/s. Empee Export, Mumbai and made the payment through cheque.
1.4 The statement of the transporter was also recorded, who deposed that M/s. Vinay Took Trader, Calcutta was a regular customer of the transport company and the six packages containing diamond wheel for marble cutting was booked by them.
1.5 Investigations were also conducted to find out the identity of M/s. Hardware Supply Syndicate and it was found that the said company did not exist. Even during the course of adjudication no reply was filed by them and the goods in question were not claimed by them.
1.6 On the basis of the above facts a show cause notice was issued to all the concerned. The said how cause notice was adjudicated by the Additional Commissioner of Customs, who ordered for absolute confiscation of the seized goods by rejecting the appellants' claim of ownership of the same. The adjudicating authority observed that the claim of the appellant appears to be a ploy to grab the goods by submitting the old documents. It was also observed by the authorities below that if there was a mix up at the end of the transporter, the appellant did not file any FIR to that extent. Appeal against the above order of the Additional Commissioner did not succeed before Commissioner (Appeals). Hence the present appeal.
2. Shri Aftab Ahmed, ld.adv. appearing for the appellant submits that a booking receipt showing the booking of the goods in question with the transporter company was duly produced before the authorities, who have failed to take note of the same. The transporter also accepted that such accident happened by mistake due to burden of load of work of the staff of the transporter company. It is also noticed that M/s. Hardware Supply Syndicate, which was shown by he transporter company as claimant of the goods has not come forward to claim the goods in question. I am of the view that the appellants' claim should have been examined by the authorities below with reference to the freight receipt issued by the transporter and by taking note of their statements instead of dismissing it on the slip short ground that no action has been taken by the appellant against the transporter by filing an FIR etc. To err is human and the mistake of mixing up of their freight receipts cannot be ruled out. The appellants have also produced documentary evidences on record showing the purchase of the goods in question which documents were put to investigation by the customs authorities. The appellants have contended that the goods in question are on OGL item and non-notified under the provisions of Section 123 of the Customs Act, 1962. All these evidences have not been considered by the adjudicating authority inasmuch as the claim of the appellants has been rejected on the preliminary ground of their not being the lawful owner of the goods in question.
3. In view of the foregoing I set aside the impugned order and remand the matter to the original adjudication authority for examining the appellants claim of ownership a fresh in the light of the observations made in the preceding paragraph and then decide the issue on merits. Appeals is thus allowed by way of remand.
(Pronounced)