Custom, Excise & Service Tax Tribunal
Sri Goutam Halder vs -Kolkata(Prev) on 16 January, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.75883 of 2021
(Arising out of Order-in-Appeal No.KOL/CUS/CCP/AKR/579,580,581/2021 dated
27.07.2021 passed by Commissioner of Customs (Appeals), Kolkata.)
Sri Goutam Halder
(S/o Late Birendra Nath Halder,
Vill.: Majdia Biswas Para, P.O. Majdia, P.S. Krishnaganj, Dist: Nadia-741507, West
Bengal.)
...Appellant
VERSUS
Commissioner of Customs (Preventive), Kolkata
.....Respondent
(15/1, Strand Road, Custom House, Kolkata-700001.) WITH Customs Appeal No.75884 of 2021 (Arising out of Order-in-Appeal No.KOL/CUS/CCP/AKR/579,580,581/2021 dated 27.07.2021 passed by Commissioner of Customs (Appeals), Kolkata.) Sri Biplab Majumdar Prop. of M/s. Majumdar Jewellers (S/o. Late Ananta Majumdar, Vill. Fulbari, P.O. Banpur, P.S. Krishnagang, Dist.Nadia- 741503, West Bengal.) ...Appellant VERSUS Commissioner of Customs (Preventive), Kolkata .....Respondent (15/1, Strand Road, Custom House, Kolkata-700001.) AND Customs Appeal No.75885 of 2021 (Arising out of Order-in-Appeal No.KOL/CUS/CCP/AKR/579,580,581/2021 dated 27.07.2021 passed by Commissioner of Customs (Appeals), Kolkata.) Sri Chandi Biswas (S/o Late Shanti Biswas, Vill. Fulbari, P.O. Banpur, P.S. Krishnagang, Dist.Nadia- 741503, West Bengal.) ...Appellant VERSUS Commissioner of Customs (Preventive), Kolkata .....Respondent (15/1, Strand Road, Custom House, Kolkata-700001.) 2 Customs Appeal Nos.75883, 75884 & 75885 of 2021 APPEARANCE Ms. Atika Sumran Ahmed, Advocate for the Appellant (s) Shri S.Debnath, Authorized Representative for the Revenue CORAM: HON'BLE SHRI K. ANPAZHAKAN, MEMBER(TECHNICAL) FINAL ORDER NO. 75037-75039/2024 DATE OF HEARING : 16 January 2024 DATE OF DECISION : 16 January 2024 K. ANPAZHAKAN :
The present appeal has been filed by the appellants against the impugned Order-in-Appeal dated 27.07.2021.
2. Briefly stated the facts of the case are that on 30.10.2018, the Special Ambush Party of BSF Banpur, intercepted the appellant Shri Chandi Biswas and found to contain gold ornaments weighing 1211.590 gms in his possession. He also had one old and used hi-tech mobile phone with him. The goods found in his possession has been totally valued Rs.37,18,263/-. The BSF offices handed over the person and the said goods to Banpur Customs for taking further action under the Customs Act. After due observance of Customs formalities, the goods were seized under section 110 of the Customs Act on 30.10.2018 under the reasonable belief that the goods were attempted to be exported illegally to Bangladesh through unauthorized route. After investigation, a show cause notice was issued proposing confiscation of the gold jewelley seized. On adjudication, the Ld.Commissioner confiscated the gold jewelley vide Order-in-Original dated 21.02.2020. Penalty was also imposed on all the three appellants under section 114(i) of the Customs Act, 1962. On appeal, the Ld.Commissioner(Appeals) upheld the confiscation and penalties imposed in the Order-in-Original. Against the said order, all the three appellants have filed the present appeals.
3. The Ld.Counsel for the appellants submits that there was no attempt to export the gold ornaments as alleged in the impugned order. Shri Chandi Biswas in his statement dated 30.10.2018 stated that he was permanent staff of Shri Goutam Halder and the gold was 3 Customs Appeal Nos.75883, 75884 & 75885 of 2021 handed over to him by the said Shri Goutam Halder for handing it over to M/s. Majumdar Jewellers. The department has not brought in any evidence to substantiate the allegation that there was an attempt to export the gold jewellary through illicit route of Bangladesh border.
Accordingly she contended that the confiscation of the gold was not warranted and prayed for setting aside the impugned order. She also prayed for setting aside the penalties imposed against all the three appellants.
4. The Ld.AR for the department submits that Shri Goutam Halder failed to submit any licit documents in support of his claim for the ownership of the gold. Shri Chandi Biswas was not having any documents at the time of seizure of the gold jewellery from his possession. Accordingly, he submits that the ownership of the gold jewellery claimed by Shri Goutam Halder is only an after-thought. Thus, he supported the impugned order confiscating the gold jewelley and imposing penalties.
5. Heard both sides and perused the appeal documents.
6. I find that the gold jewelley were recovered from the possession of Shri Chandi Biswas by the BSF officers in the Barantala Bazar and the same were handed over to the Customs officers for further necessary action under Customs Act. I observe that the investigation has not brought in any evidence on record to substantiate the allegation that there was an attempted export of the said gold jewellary. I find that during the course of investigation, Shri Goutam Halder has submitted three invoices - No.37 dated 19.07.2018, No.42 dated 13.09.2018 and No.47 dated 30.10.2018 for claiming the ownership of the gold. The adjudicating authority has dismissed these documents as these invoices do not bear the GST registration number. Accordingly, he held that they are not authentic documents and not considered as evidence to substantiate the claim ownership of the seized gold ornaments.
7. I find that the gold jewellery was seized from the domestic market area. On testing, the gold jewellery were found to be having purity of 4 Customs Appeal Nos.75883, 75884 & 75885 of 2021 91.6%. Thus, they are not foreign origin gold with 99.9% purity. Hence, the seized gold jewellery would not fall within the ambit of section 123 of the Customs Act. Accordingly, I find that the burden of proof envisaged under section 123 of the Customs Act is not on the appellant. Further, I find that the appellant has submitted documentary evidence in the form of three invoices claiming ownership of the gold jewellery seized. There is no investigation conducted by the department to ascertain the genuineness of the invoices. Shri Chandi Biswas in his statement dated 30.10.2018 stated that he was permanent staff of Shri Goutam Halder and the gold was handed over to him by the said Shri Goutam Halder for handing it over to M/s. Majumdar Jewellers. The investigation has not brought in any evidence to disprove this claim. Accordingly, I hold that the allegation of attempted export of the gold jewellery in the impugned order is not substantiated. In view of the above, I hold that the confiscation of the gold in the impugned order is not sustainable.
8. Regarding the penalties imposed on the appellants, I find that Shri Chandi Biswas was holding the gold ornaments having purity of 91.6%. It was handed over to him by Shri Goutam Halder for giving it to Shri Biplab Majumdar. The impugned order has not brought on record the offence committed by each one of the appellants warranting penalties on them. As there is no evidence available on record for the attempted export as alleged in the impugned order, I hold that the penalties imposed against all the three appellants are not sustainable. Accordingly, I set aside the same.
9. In view of the above, all the three appeals filed by the appellants are allowed with consequential relief, if any, as per law.
(Dictated and pronounced in the open Court.) Sd/ (K. ANPAZHAKAN) MEMBER (TECHNICAL) sm