Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Prev), ... vs Ashok Kumar Agarwal on 20 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. C/632/01
(Arising out of Order-in-Original No. 2/Ch.86/Commissioner/CE/CAL-IV/Adjn/99 date 15/02/21999 Passed by the Commissioner of Central Excise, Calcutta-IV
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Commissioner of Customs (Prev), Kolkata.
Applicant (s)/Appellant (s)
Vs.
Ashok Kumar Agarwal.
Respondent (s)
Appearance:
Shri Arijit Chakraborty, Advocate of the Appellant (s) Shri S. N. Mitra, AC (AR) for the Respondent (s) CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL) HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL) Date of Hearing/Decision: 20.09.16 ORDER No.FO/A/76069/16 Per Shri H.K.Thakur This appeal has been filed by the Revenue against OIA No. Prev. Cus. 498, 499/2001 dt 10/8/2001 passed by CC (Appeals) Strand Road Kolkata as first Appellate authority under which appeal of the Respondent herein was allowed.
2. Sh. S. N. Mitra AC (AR) appearing on behalf of the Revenue argued that Appeal of the Revenue was earlier allowed against Sh. Ashoke Kumar Agarwal under order order No. A-148-149/KOL/2002 dt 11/2/2002 passed by this bench. That appellant herein approached Calcutta High Court through WP No. 515 of 2002 and Honble High Court by order dated 22/2/2016 remanded the matter to Tribunal by making following observations:-
Mr. Bharadwaj, learned Advocate appearing on behalf of the Customs Authority could not dispute the submissions made by Mr. Chakraborti regarding requirement of law for description of mark to be given as appearing on the item sold. He also could not demonstrate from the record at which point or till which of the several sales of the gold biscuits imported by MMTC by the indentified consignment, the description of the mark was given in the sale documents.
The burden of proof lay on the petitioner to discharge in the matter of proving the gold biscuits said to belong to him were not smuggled goods. By producing documents, which could not be disputed, the onus shifted to the department. The department sought to trace the origin of the goods to the identified consignment imported by MMTC. However, the department must do something more to demonstrate that the gold biscuits confiscated belonging to the petitioner were not duly purchased by the petitioner under documents produced to enable confiscation thereof as smuggled goods.
For the reasons aforesaid, the impugned order is set aside to the extent it affects the petitioner. The Tribunal will revisit the matter and give its finding as expeditiously as possible upon allowing opportunity of hearing. This order is to be communicated to the Learned Tribunal.
The writ petition is disposed of. 2.1. Learned AR submitted that Sh. Jitendra Kanti was the carrier of the seized gold bars & stated that the goods are of foreign origin. That the purchase bill produced by the Respondent subsequently does not indicate any marking where as the gold bars were actually bearing Swiss marking. That ultimate origin of gold when traced to M/s MMTC indicated that gold bars imported by M/s MMTC were bearing Credit Swiss markings different from what were found on seized gold bars. That when the ultimate source shows markings different than what were found with the respondent then such foreign marked gold becomes smuggled and was liable to confiscation. That first appellate authority has wrongly decided the case in favour of the Respondent.
3. Sh. Arijit Chakraborty (Advocate) & Sh. Sagar Bandopadhyay (Advocate) appeared on behalf of the Respondent. Sh. Arijit Chakraborty argued that it is not a statutory requirement to indicate markings of the foreign origin gold in the sale documents. That even the documents prepared by M/s MMTC also do not indicate the markings of gold bars of foreign origin. Learned Advocate made the bench go through Para- 10 & 11 of the OIA dt 10/8/2001 and second last Para of High Courts order dt 22/2/2016 to argue that Respondent has purchased the foreign marked gold bars and the supplier has confirmed to have sold the gold bars to his client. That order passed by the first appellate authority is just & proper.
4. Heard both sides & perused the case record. The issue involved is whether confiscation of foreign marked gold bars ordered by the Adjudicating authority is required to be restored or first appellate authority has correctly allowed the appeal of the Respondent herein. Respondent produced bill No. 527 dated 30/11/97, issued by M/s Laljibhai Kanjibhai Soni Kanjibhai Soni of Ahmadabad, regarding purchase of foreign marked gold bars. The said document was not indicating having any markings of gold bars and the seller confirmed to have sold the gold bars to the Respondent. It is not a legal requirement to indicate the foreign markings of the gold bars in the sale bills. Even the Delivery Challans dt 29/1/97 & 30/1/97 issued by MMTC Limited, Ahmedabad to M/s Choksi Arrind Kumar & Co. also did not contain foreign markings. Investigation has not been able to establish that 800 TT Bars were the only bars acquired by M/s Choksi Arrind Kumar & Co. Once importer MMTC Ltd is not showing any foreign markings in the delivery / sales documents then the Respondent can not be questioned to explain the foreign markings not indicated in the bill No. 527 dated 30/1/97. Once Respondent has produced such a bill then the burden under Sec 123 of the Customs Act 1962 stands discharged. It has also been observed by Honable Calcutta High Court in second last Para of order dt 22/2/16, quoted above, that department is required to do something more to demonstrate that the gold bars confiscated were not purchased by the Respondent under the documents produced. Revenue is not able to demonstrate with documentary evidence that the seized gold bars were procured from any other source, except raising some suspicion. It is a well settled legal proposition that a case can not be held to be established on the basis of assumptions, presumptions & surmises. In view of the above observations there is nothing wrong in the findings of first appellate authority, as contained in Para-10 of OIA dt 10/8/2001 and no interference is called for to set aside the same.
5. Accordingly, appeal filed by the Revenue is dismissed.
(Operative part of the order was pronounced in the open court.) (P.K. CHOUDHARY) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER T.K 2 Appeal No. C/632/01