Custom, Excise & Service Tax Tribunal
M/S.Uma Trading Company vs Commissioner Of Customs(Prev.), Patna on 25 September, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos.CDM-220-222/06
(Arising out of Order-in-Appeal No.171-173/CUS/APPEAL/2003 dated 21.07.2004 passed by the Commissioner(Appeals) of Customs & Central Excise, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
HONBLE DR. D.M. MISRA, 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?
M/s.Uma Trading Company
Md.Islam
Shri Suresh Kumar Goel
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Prev.), Patna
Respondent (s)
Appearance:
Shri K.P.Dey, Advocate for the Appellant (s) Shri S.Chakraborty, A.C.(A.R.) for the Respondent (s) CORAM:
Honble Shri S.K. Gaule, Member(Technical) Honble Dr. D.M. Misra, Member(Judicial) Date of Hearing:- 25.09.2012 Date of Pronouncement :- 25.09.2012 ORDER NO.
Per Shri S.K.Gaule.
1. Heard both sides.
2. Appellants filed these appeals against Order-in-Appeal No.171-173/CUS/APPEAL/2003 dated 21.07.2004 whereby ld.Commissioner(Appeals) has upheld the lower adjudicating authoritys order.
3.1 Briefly stated the facts of the case are that customs officers found 4 big packets and one small carton lying in bundle from the roof of the bus coming from Siliguri to Kolkata at Firng Gols (Kishanganj check post). One Shri Anjan Roy filed a petition before District Magistrate of Kishanganj and submitted that he consigned the said seized goods to one Md.Islam, the appellant No.2 and he also stated that copy of bill of entry of import of goods were attached with the documents of the seized goods, but he could not produce the bill of entry. Md.Islam claimed the ownership of the goods. Thereby proceedings were initiated against 5 noticees namely i) Shri Md.Islam, ii) Shri Subhash Agarwal, iii) Shri Suresh Kr. Goyal, iv) M/s.G.T. Travels and v) Shri Anjan Roy.
3.2 Lower adjudicating authority ordered the absolute confiscation of the goods under seizure namely 158 pieces of rain coat, 400 pieces of trousers and 297 pieces of wrist watch chains and imposed penalty against the said notices of Rs.20,000/- each under section 112 of Customs Act, 1962 in each case. Aggrieved by the same the appellant filed appeals before ld.Commissioner(Appeals). Ld.Commissioner(Appeals) has rejected the appeals filed by the appellants. Aggrieved by the same, the above appellants are in appeal.
4. The contention is that the lower adjudicating authority has confirmed the demand against them while relying upon Notification No.9/96 which provides that the goods which are exported to Nepal to countries other than to India would be treated as prohibited goods and the Notification is not applicable to their case because the goods have not come from Nepal and these goods are of third country origin. Therefore Notification is not applicable to their case. The contention is that since the goods are not covered under section 123 of Customs Act, 1962 the onus lies on the department to prove that they are smuggled goods and the department could not discharge the onus. The contention is that the the cases Kewal Kishan vs. State of Punjab 1993 (67) E.L.T. 17 (SC) and Shambhu Nath vs. Commissioner of Customs, Lucknow 2001 (132) E.L.T. 195 (Tri.-Del.) relied upon by ld.Commissioner(Appeals) in his order relate to smuggling of gold and silver thus not applicable to their case. The contention is that they have produced the bills relating to purchase of these goods, before lower adjudicating authority he has not given any finding on the same. The contention is that this is a second round of litigation.
5. Contention of ld.A.R. appearing for the department is that in case of non-notified goods also the onus lies on the person from whose possession, the goods are recovered to establish how he has come to possess the said goods. In support of his contention he has placed reliance on this Tribunals decision in the case of Nazir UI Rahaman v. Commissioner of Customs, Mumbai 2004 (174) ELT 493 (T).
6. We have carefully considered the submissions and perused the records. Undisputedly the goods involved in this case is rain coat, trousers and wrist watch chains. The goods are not notified under section 123 of Customs Act, 1962. We find that once the goods are not notified, the onus lies on the department to show that the goods are smuggled goods. The appellant produced the bill for the said goods i.e. cash memo No.384 dated 30.06.2001 and 22.09.2001. The show cause notice in this case was issued on 12.10.2001. We find that both the lower authorities have referred to these cash memos. The applicant produced the cash memo prior to issue of show cause notice. Nothing prevented the department to carry out further investigation to check the veracity of the documents. The decisions in the case of Kewal Kishan and Sambhu Nath pertains to smuggled goods of gold and silver and therefore they are not relatable to this case. So far the decision cited by the ld.A.R. in the case of Nazir UI Rahaman(supra) is concerned we find that in that case the persons from whose possession the goods were recovered were not able to establish how they come to possess the said goods whereas in the instant case, the appellants have produced the cash memos for purchase of the said goods and the department could not produce anything contrary or challenged the veracity of the said documents. As already discussed, supra, the onus rested with the department to show the smuggled nature of the goods. The department could not discharge that onus. In these circumstances the ld.Commissioner order is not sustainable and is accordingly set aside and appeals in the case of above three appellants are allowed with consequential relief, if any, as per law. It is made clear that no appeal has been filed in respect of chain, therefore the present order is limited to the extent of rain coats and trousers only.
(Pronounced and dictated in the open court.) Sd/ sd/ (D.M.MISRA) (S.K. GAULE) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm 4 Appeal No.CDM-220-222/06