Custom, Excise & Service Tax Tribunal
Commissioner Of Customs - Cochin-Cus vs Shri Valappil Hamza on 4 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 26894-26895 / 2013 Appeal(s) Involved: C/22/2008-SM, C/23/2008-SM [Arising out of Order-in-Original No. 03/2007 dated 09/05/2007 passed by Commissioner of Customs (Preventive), COCHIN. Commissioner of Customs - COCHIN-CUS CR BUILDING IS PRESS ROAD ERNAKULAM COCHIN, KERALA 682018. Appellant(s) Versus Shri Valappil Hamza S/O. ALAVI HAJI, VALAPPIL HOUSE, P.O., VALIYORA, VENGARA, MALAPPURAM, MALAPURAM, KERALA Shri Valappil Hamza, S/O. K. HAJI, VALAPPIL HOUSE, HOUSE NO.111/407 (OORAKAM PANCHAYAT), P.O.OORAKAM KZHMURI, VENGARA, MALAPPURAM. Respondent(s)
Appearance:
Mr. A.K.Nigam, Addl. Commissioner (AR) For the Appellant None For the Respondent CORAM :
HONBLE SHIR B.S.V. MURTHY, TECHNICAL MEMBER ________________________________________ Date of Hearing: 04/11/2013 Date of Decision: 04/11/2013 Per. B.S.V. MURTHY Since both the appeals filed by Revenue challenge the same impugned order in respect of two respondents with the same names but with different names of fathers, both the appeals are taken together and a common order is passed.
2. Brief facts of the case are that a sum of Rs. 47,00,550/- in loose Indian currency notes was seized on 8.5.2003 from a concealed cavity of vehicle in which the occupants were Shri Abdul Kareem and Shri M.P. Sharafuddin. Subsequently, seizure of Indian currency, two gold bars each weighing 1 kg with marking Rand Refinery Ltd., South Africa, 1000g gold 9950 fineness with Sl Nos. ST 34989 and ST 34990 was made from the possession of Shri E.K. Haneefa at the premises of M/s Balaji Refinery. On the same day, one more gold bar of 1 Kg with marking Credit Suisse 1 Kilo gold 995.0 with Sl. No. erased was seized from the possession of Shri Valappil Hamza s/o K.Haji at the premises of M/s Balaji Refinery. Subsequently, another Valappil Hamza, S/o Alavi Haji claimed ownership of three gold bars and after observing principles of natural justice, an order was passed. All the gold bars were absolutely confiscated and penalty was imposed on the three persons. Aggrieved by the order, all the three persons namely, Shri E.K. Haneefa, Valappil Hamza S/o Kunhammed Haji and Valappil Hamza S/o Alavi Haji appealed before the Tribunal and the Tribunal remanded the matter with an observation that cross-examination of the Manager of M/s Shiv Sahai & Sons, Chennai sought by the appellants should have been allowed. The impugned order before me is one that has been passed after allowing the cross-examination as directed by this Tribunal.
3. Revenue is aggrieved with this order because Commissioner has not passed a proper adjudication order clearly deciding the issues on confiscation and penalty. Revenue has also stated that the Commissioner ought to have passed an appropriate adjudication order in the light of the fact that the Order-in-Original No. 6/2005, insofar as relates to three appellants was set aside by the Tribunal and the matter has been remanded for de novo consideration. Therefore, there is no order insofar as the three appellants.
4. After hearing learned AR on behalf of Revenue on the appeals filed by the department and going through the order, I find that the Commissioner in his conclusive order portion has stated as under :
The advocate, on behalf of his clients i.e. S/Shri E.K. Haneefa, Valappil Hamza S/o Kunhammad Haji and Valappil Hamza S/o Alavi Haji, has failed to produce any documents to licit possession of the three gold bars which is one of the subject matter dealt with in Order-in-Original No. 6/05 dated 5.4.05. Accordingly, no interference is warranted in the Order-in-Original referred above with reference to the three gold bars and the decision of the original authority is legal and proper. From the above, it can be seen that the Commissioner has simply stated that he agrees with the previous order but has not recorded any clear finding. The observation of the Commissioner in his order that he does not want to interfere with the order-in-original and Commissioner has not passed any order since no interference is warranted in the first place.
5. Further, I take note of the fact that the Commissioner has recorded his conclusion in the finding portion as under :
Under the above circumstances, it has to be held that S/Shri E.K. Haneefa, Valappil Hamza S/O Kumhammad Haji and Valappil Hamza S/O Alavi Haji have failed to produce any new documentary evidence during the course of cross-examination. Accordingly, it has to be concluded that the decision of the original authority with reference to the three gold bars vide his order in original No. 6/2005 dated 05.4.2005 is legal and proper and does not warrant any interference. In view of the matter, I pass the following order. In this order also, one can take objection to his word interference and the fact is that he agrees with the conclusion reached by the Commissioner in his Order-in-Original No. 6/2005 dated 31.3.2005 since he has not found any difference made becaue of cross-examination. In these circumstances, I consider that the request of Revenue to set aside the impugned Order-in-Original and remand the matter for de novo consideration is appropriate. I further take note of the fact that the matter is related to the year 2003 and it is already 10 years old and none of the respondents is before me today. Further, I also find that the observation of the Commissioner shows a lack of legal knowledge as regards the exact words to be used while passing the order. Strictly speaking it may be appropriate to remand the matter but in my opinion, it would be more appropriate to modify the order or pass an appropriate order. Accordingly I consider it appropriate that the order has to be upheld as regards absolute confiscation of seized gold bars and penalty imposed on the appellants as per the previous order which had been challenged before the Tribunal when it was remanded. Accordingly, I uphold the decision of absolute confiscation of the goods and the penalties imposed on the appellants in the previous round of litigation by the Commissioner which was challenged and set aside and remanded by the Tribunal . Appeals are disposed of in the above terms.
(Order dictated and pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER /vc/