Customs, Excise and Gold Tribunal - Calcutta
Sufal Dutta vs Commissioner Of Customs (Prev.) on 12 June, 2003
Equivalent citations: 2003(161)ELT639(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. Vide the impugned Order, the authorities below have confiscated the metal scraps (zinc and brass) on the ground that the same was smuggled.
2. As per facts on record, one truck coming from Karimpur side was intercepted by the BSF on 20-7-99 and was found to be loaded 1000 Kgs. of Zinc Metal Scraps and 1,000 Kgs. of Brass Metal Scraps. On interception by the BSF Officers, the driver of the truck in question along with his associate fled away from the scene. The B.S.F. Authorities handed over the truck along with the loaded scraps to the Customs Authorities who seized the same. The appellant herein filed a claim petition on 28-7-99 with the Customs Authorities claiming the joint ownership of 3000 Kgs. of Metal Scraps and, submitted that the same had been purchased by him from the various pavement sellers and the same were meant for resale to businessmen of that area.
3. On the above basis, proceedings were initiated against the appellant by way of issuing a show cause notice dated 7-12-99. The said proceedings culminated into the impugned Order confiscating the scrap as also the vehicle. However, no penalty was imposed upon the appellant.
4. Shri K. Chatterjee, learned Consultant for the appellant submits that there is nothing on record to show that there was foreign marking on the metal scraps in question. The entire case of the Revenue is based on assumption and presumption. He, further, submits that in any case, the metal scrap is a non-notified item in terms of the provisions of Section 123 of the Customs Act, 1962 and as such, the onus to prove that the same was smuggled, lies upon the Revenue. There is no evidence on record to show the contraband nature of the Metal Scrap. He submits that the Commissioner (Appeals) has gone by the fact that the owners were not present at the time of interception; that the driver fled away on seeing the BSF Officers; and the claim was made after a gap of seven days and no documents have been placed on record by the appellant. Shri Chatterjee submits that all the above circumstantial evidences discussed by the Commissioner (Appeals) cannot take the place of legal evidence to show that the scrap was smuggled. He also submits that the appellant had produced katcha slips showing the purchase of the scraps in question, which have not been discussed by the authorities. He places reliance on a number of decisions of Tribunal to the same effect as also upon the Commissioner's own Adjudication, Order No. 3/Cus/Com.(Prev.)/WB/98, dated 28-4-98 observing that there is a market of metal scraps in that area and releasing the seized metal scrap.
5. Shri T.K. Kar, learned S.D.R. for the Revenue reiterates the reasoning of the authorities.
6. I have considered the submissions made by both sides. The appellant's contention is that there were no markings on the metal scrap in question. I also find no mention about the appearance of foreign markings on the metal scraps. For holding any item to be smuggled, the Revenue is first required to prove that the goods under consideration are of foreign origin. In the absence of any evidence to that effect, it cannot be held that the goods have been illegally imported into India. In any case, I find that the goods are non-notified items and there is no evidence on record produced by the Revenue to suggest that the goods have been smuggled. The appellants have produced the Cash Receipts showing the said purchase of the metal scraps which have not been put on record for verification by the Revenue and have been dismissed without showing any reason. Similarly, I note that fleeing of the driver on seeing the BSF Officers is by itself, no proof of the goods being of smuggled character, as held by the Tribunal in the case of Rajdoot Road Carrier and Ors. v. C.C., Lucknow reported in 2000 (118) E.L.T. 146 (Tribunal) = 1999 (35) RLT 69 (CEGAT), wherein it was held that running away of the driver at the time of interception is not sufficient to establish his knowledge of smuggled nature of the goods. Similarly, filing of the claim petition by the appellant claiming ownership of the goods after a period of seven days from the date of seizure, does not lead to an inevitable conclusion that the metal scrap in question was smuggled.
7. In view of the foregoing, I set aside the impugned Order and allow the appeal with consequential relief to the appellant.