Custom, Excise & Service Tax Tribunal
Shri Deepak Kumar, Proprietor vs Commr. Of Customs (Preventive), W.B., ... on 17 October, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, EAST ZONAL BENCH: KOLKATA
Customs Appeal No. 241/07
(Arising out of Order-in-Appeal No. Prev/Cus/95-97/2007 dt. 31/07/2007 passed by the Commissioner of Customs (Appeals), Kolkata read with CESTAT Order No. M-240/KOL/08 dated-12/09/08)
For approval and signature of:
Honble Shri D.N.Panda, Judicial Member
Shri Deepak Kumar, Proprietor
M/s. Sunshine International Agency
Applicant (s)/Appellant (s)
Vs.
Commr. of Customs (Preventive), W.B., Kolkata
Respondent (s)
Appearance:
Sri A.K. Bhattacharjee, Consultant 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: 17/10/08 Date of decision: -17/10/2008 ORDER NO Per Shri D.N.Panda 1.1 Ld. Consultant Shri Bhattacharjee, appearing for the appellant submitted that the appellant Shri Deepak Kumar was innocent but he was unnecessarily implicated into the matter of investigating agency when they failed to find a clue of the case. The case was only built up to succeed in their mission of investigation. He pleaded that the CHA had acted bonafide without any sort of sabotage to Revenue and the importer M/s. S.N. Traders of Guwahati had engaged him to clear the goods submitting their bill of entries. The CHA merely been an agent, has no nexus with the transaction but acted on the instruction of his client for estimation. All the three findings of the Ld. Appellate Authority as appears in page 16 of his order, are contrary to the evidence on record while the appellant was innocent.
1.2 Repelling the findings, the learned consultant submits that for reasons beyond his control, the appellant failed to appear before the authorities on few occasions but subsequently he appeared and statement was recorded from him. Therefore, non co-operation for the proceeding is out of question. So far as the second finding about the importer is concerned, he submitted that there was no fictitious transaction at all done by him on behalf of the importer but for the reason why the Department recorded a negative statement against the appellant that is not known to him.
1.3 He further argued that there was no involvement of the appellant questionably in any of the nine consignments noticed by the Department which were dealt most honestly and diligently. The appellant was not charged for those cases but for the only transaction for which the appellant was charged is present one. He should be dealt as an innocent without imposition of penalty.
2. Ld. SDR appearing for Revenue submitted that the appellant is not at all an innocent but had been involved in nine consignments related to M/s. S.N. Traders who engaged the present appellant. The transactions were done with ill motive for which the appellant not only failed to co-operate with the Department during investigation but also fabricated documents which were submitted to prove that he is innocent. Thirdly, the appellant had proved his conduct contrary to law for which he was rightly penalized by the authorities below.
3.1 Heard both sides and perused record.
3.2 Both the authorities below held against the appellant for the well reason that the appellant avoided summon to appear and co-operate for the proceeding. There is no rebuttable evidence to discard the averments of the importer against the Appellant who has stated to have engaged the Appellant and thirdly, to prove his innocence the Appellant did not prefer to cross examine the importer. However, there is nothing on record to prove that all the nine consignments dealt by the appellants were questionable for which the present appellants conduct can be said to be malafide. However, for the reason that the importer discarded credentiality of the present appellant, categorically stating that he had not authorized the appellant to deal with the transaction, it is enough to hold that the appellant had not come out with clean hands to co-operate Revenue for investigation. As a measure of deterrence to prevent recurrence of mischief, it would be just and proper to impose a penalty of Rs.10,000/- (Rupees Ten Thousand only) on the appellant and that is done accordingly by this order. It is needless to mention that if the Department finds the appellant questionable in any other future transaction, it is left to the Department to deal the appellant appropriately under the law. Accordingly, the appeal is partly allowed to the extent indicated above with consequential relief to the appellant.
(Dictated and pronounced in the open court) Sd/- 27/10/08 (D.N. PANDA) JUDICIAL MEMBER k.b/-
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Customs Appeal No. 241/07 4