Customs, Excise and Gold Tribunal - Calcutta
Shri Suhrid Dey vs Commissioner Of Customs (Prev.) on 3 March, 2005
ORDER V.K. Jain, Member (T)
1. This is an appeal filed again the Order-in-Appeal No. PREV/Cus-2002/2003 dated 28.08.2003 passed by the Commissioner of Customs (Appeals), Kolkata.
2. The brief facts of the case are as following :
The Customs officers of Preventive & Intelligence Branc, Hd. Qrs. searched the premises of M/s. Suhrid Traders at 2003 Rabindra Sarani, Kolkata on 12.01.2001, in the presence of Shri Suhrid Dey, Proprietor, and recovered sewing machine parts of foreign origin for which Shri Dey could not produce any licit documents for possession/importation/purchase bills. The goods were seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the goods were imported illegally into India. On completion of the seized formalities a copy of the inventory was handed over to Shri Dey under receipt on the spot. In response to summon issued under Section 108 of the Customs Act, 1962, Shri Dey in his voluntary statement admitted that he was actually selling goods for foreign origin. He also admitted that the used to deal in such foreign goods in unaccounted manner. later Shri Dey demanded a copy of inventory vide his letter dated 23.02.2001 which was supplied to him on 21.03.2001. Shri Dey submitted five Xerox copies of bills of M/s. Sanjay Traders of Kolkata along with a letter who was also summoned to give evidence. One Shri B.N. Mehta appeared along with some bill of entries. Shri B.K. Mehta admitted in his voluntary statement that M/s. Suhrid Traders used to buy some parts of foreign origin and the goods have no bills are not sold by them to M/s. Suhrid Traders. A show cause notice was issued under section 124 of the Customs Act to the Appellants. The Joint Commissioner of Customs (Prev.) in his order dated 14.08.2002 confiscated the impugned goods absolutely and imposed personal penalty of Rs. 5000/- on the Appellant. The Commissioner (Appeals) found no merit in the appeal and rejected the appeal and hence this appeal before this Tribunal.
3. Shri T. Hussain, Advocate appeared for the Appellants. He submitted that sewing machine parts are freely available in the market since the Government liberalization policy permitted the import of parts/spares under O.G.L. The Sewing Machine parts are non-notified and do not attract the provisions of Section 123 of the Customs Act, 1962 as such the initial onus to prove the smuggled/contraband nature of the same rested on the department. The Department has not discharged the said onus placed upon them. He also submits that the Seizing Officer has not reasonable belief available in as much as possession of foreign sewing machine pats was no offence as they are freely importable. Section 123 of the Customs Act is not attracted, so the question of producing import documents/bills did not arise. In view of above, he prays that the order of confiscation and imposition of penalty be set aside.
4. Heard Shri A.K. Choudhary, ld. SDR for the Revenue Shri Choudhary points out the Order-in-Original passed by the Joint Commissioner, Customs who observed as follows :
(a) The seized goods have distinct foreign markings on them.
(b) No licit document was produced in support of legal possession/acquisition/importation of the same.
(c) The claim petition for a portion of seized goods was submitted after a prolonged period of 74 days which was sufficient for manipulation and preparation of fabricated documents. The documents did not cover the impugned goods and were not relatable to the goods under seizure. Had the goods been procured lawfully, the documents could have been made available to the Department Officers in time for necessary verification regarding licit acquisition.
5. He also refers to the Order-in-Appeal passed by the Commissioner (Appeals) wherein he has observed that on completion of the seizure formalities a copy of the inventory as handed over to Shri Dey. In response to summons Shri Dey in his voluntary statement admitted that he was actually selling goods of foreign origin. He has also admitted that he used to deal in such foreign goods in unaccounted manner. The Commissioner (Appeals) has observed that the search was conducted on the strength of search warrant in presence of Shri Dey, Proprietor of M/s. Sanjay Trades in presence of two independent witnesses. The matter is not contested anywhere during investigation and in appeal petition. The Commissioner (Appeals) has agreed with the findings of lower authority that the claim petition submitted after a prolonged period of 74 days which was sufficient for manipulation and preparation of fabricated documents. Had the goods been procured lawfully, the documents could have been made available to the Department Officers in time for necessary verification regarding licit acquisition.
6. Heard both the sides. I find that the appellant has admitted in his voluntary statement under Section 108 of the Customs Act that he was actually selling the goods of foreign origin. He also admitted that he used to deal in such foreign goods in an unaccounted manner. Since the appellant has admitted in his voluntary statement that selling of foreign origin goods in an uncounted manner this also remains undisputed seized goods distinctive foreign marking and no licit document was produced in support of legal possession of the same and the claim for the seized goods was filed after 74 days. The confiscation of the seized goods under Customs Act under provisions of Section 111 (b) and 111 (b) of the Customs Act. The goods are liable for seizure under Customs Act. The decisions quoted by the ld. Advocate does not help the appellant and are distinguishable.
7. I find that the goods are confiscated absolutely. The Hon'ble Kolkata High Court had held that the Commissioner of Customs (Preventive) v. Uma Shankar Verma reported in 2000 120 ELT 322 (Kol) that when the goods are not prohibited the Customs Authorities have no other option but to allow grant of an option to the assessee to pay a fine in lieu of confiscation. In this case the impugned goods are neither prohibited nor restricted. In view of judgment cited above, the lower authority should have given an option to redeem the goods. In view of above, I remand the matter to the Original Adjudicating Authority to give an option for redeem the goods. I find the absolute confiscation is not correct. The lower authority should be given an option to redeem the goods after observing the principles of natural justice. I remand the case to the original adjudicating authority for determining the redemption fine and the amount of penalty, if any.