Custom, Excise & Service Tax Tribunal
) Amit Kr. Agarwal vs Commr. Of Customs, Kolkata-I on 30 September, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
Customs Appeal Nos. 246 & 247/2007
(Arising out of Order-in-Appeal No. Prev/Cus/95-97/2007 dated-31.07.2007 passed by the Commissioner of Customs (Appeals), Kolkata)
For approval and signature:
Honble Shri D.N. Panda, Judicial Member
1) Amit Kr. Agarwal
2) Mahendra Kumar Daga
Applicant (s)/Appellant (s)
Vs.
Commr. of Customs, Kolkata-I
Respondent (s)
Appearance:
Sri K.P. Dey, Advocate for the Applicant/Appellant (s) Sri J.A. Khan, SDR for the Respondent (s) CORAM:
Honble Shri D.N. Panda, Judicial Member Date of Hearing : 30/09/08 Date of decision: -30/09/2008 ORDER NO Per Shri D.N. Panda Ld. Counsel Shri Dey submitted that the Ld. Authorities below did not give the copy of the Bill of Entry No. 6171 dated-
11/7/06 to produce before the Tribunal for appreciation of case of the appellant Shri Mahendra Kumar Daga who was the bonafide importer of the impugned goods so also the other Appellant. There is nothing on record to show that any other person was importer of goods under that Bill of Entry. When the Department seized the goods which is subject matter of Bill of Entry No. 6177 dated 11/7/2006, the appellant has absolute right to be heard on the truthfulness of the import consignment under that Bill of Entry. A bonafide importer should not be dragged to litigation in respect of Bill of Entry No. 6272 which has no relevance to the Appellants at all. Ld. Authority below having relied on irrelevant material and considerations has subjected the appellant to charges which was confirmed by Ld. First Appellate Authority below. If the Ld. Adjudicating Authority provides a fair opportunity to both the appellants giving them copies of Bill of Entry and other relevant documents seized in the course of investigation and confine the enquiry to the Bill of Entry No. 6177 dated 11/7/2006, both the appellants shall have no grievance. Also if they are dealt in accordance with law they shall be rendered justice. Therefore, he prays that if the matter goes back for consideration of enquiry on the Bill of Entry No. 6177 dt. 11.7.06, the litigation shall be reduced and further grievance may not arise.
2. Ld. Departmental Representative submits that the goods imported were used as means to conceal other goods with the coverage of import. The appellant was therefore, bound to face charge. He further submitted that the authorities below made an extensive enquiry and the appellants had failed to claim the goods. The appellant Shri Amit Kumar Agarwal disowned the goods several times for which orders passed by authorities below does not call for interference.
3. Heard both sides and perused record.
4. The order of adjudication in appeal, itself brings the appellant Shri Mahendra Kumar Daga into charge finding that there was illegal import made vide Bill of Entry No. 6177 dated 11/7/06. The manner how the transaction was characterized as illegal is not patent from the order of adjudication. Such manner is also absent in the appeal order passed by the Ld. Commissioner (Appeal). If an order fails to suggest the manner how a transaction can be brought to the fold of law and call the same as illegal the order is certainly to be an order suffering from legal infirmity. Secondly when the case appears to have relevance to the Bill of Entry No. 6177 dated 11/7/06 bringing the appellant Shri Mahendra Kumar Daga into charges, enquiry should have been confined to that Bill of Entry only, to find out whether there existed a charge against the appellant. Similarly, if the appellant Shri Amit Kumar Agarwal was connected to such Bill of Entry and also having nexus or link with the first appellant that should have been clearly brought out for defence. Perusal of orders passed by Authorities below do not suggest that both the appellants were brought to charge clearly to lead their defence. Caution is necessary to examine that the adjudication does not travel beyond Show Cause Notice.
4. In view of the aforesaid necessities, it would be proper to remit back the matter to the Ld. Adjudicating Authority who shall ascertain whether the enquiry should be confined to Bill of Entry No. 6177 dated 11/7/2006 in respect of both the appellants. If the enquiry is still to spread to any other matter that should be first ascertained to be relevant and should be seen to have covered by Show Cause Notice. Decision should be taken without any extraneous material or circumstances, providing fair opportunity of rebuttal to both the appellants. If such a process is followed, the litigation may come to an end.
5. For the decision to remit back the matter as aforesaid, both the appeals are allowed by way of Remand setting aside the impugned order. Ld. Adjudicating Authority while redoing the assessment, shall afford reasonable opportunity of hearing to both the appellants and categorically state in the order the issues involved, material relied upon, defence of both appellants, reasons of decision and finally his decision to meet the end of justice.
(Dictated and pronounced in the open Court) Sd/- 01.10.08 (D.N.PANDA) JUDICIAL MEMBER k.b/-
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Customs Appeal Nos. 246 & 247/2007 2