Custom, Excise & Service Tax Tribunal
) M/S.Bhabubali Attraction Pvt.Ltd vs Commissioner Of Customs, Patna on 7 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.CA-56-63/11
(Arising out of Order-in-Appeal No.150-157/PAT/Cus/Appeal/2010 dated 25.10.2010 passed by the Commissioner(Appeals) of Customs & Central Excise, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
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?
1) M/s.Bhabubali Attraction Pvt.Ltd.
2) Shri Aloke Gupta @ Bunty Agarwal
3) Shri Ramesh Kumar Agarwal
4) Shri Ratan Kumar Agarwal
5) Shri Javed Alam
6) Shri Mahadev Bach
7) Shri Dhruv Dev Dubey
8) Shri Maqsood Alam
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs, Patna
Respondent (s)
Appearance:
Shri Arijit Chakraborty, Advocate for the Appellant (s) Shri S.Nath, AC(AR) for the Revenue CORAM:
Honble Shri H.K.Thakur, Member(Technical) Date of Hearing:- 07.04.2016 Date of Decision :-19.04.2016 ORDER NO.FO/A/75284-75291/2016 Per Shri H.K.Thakur.
Following Appeals have been filed by the Appellants against Order-in-Appeal No.150-157/PAT/Cus/Appeal/2010 dated 25.10.2010 passed by the Commissioner(Appeals) of Customs & Central Excise, Patna as First Appellate Authority, under which Order-in-Original 38-Cus/ADC/DRI/10 dated 30.04.2010 passed by Adjudicating authority was upheld:- Sl.
No. Appeal No. Name of the Appellant Appealed against
1.
C-56/2011 M/s.Bahubali Attraction Pvt Ltd., Kolkata (Appellant No.1)
(a) Absolute confiscation of Betel Nuts.
(b) Penalty of Rs.1,00,000/-.
2. C-57/2011 Shri Aloke Gupta @ Bunty Agarwal (Staff of Appellant No.1) Rs.10,000/- of Penalty.
3. C-58/2011 Shri Ramesh Kumar Agarwal (Director of Appellant No.1) Rs.1,00,000/- of Penalty.
4. C-59/2011 Ratan Kumar Agarwal Prop. Of M/s.R.K.Enterprises, Kanpur Rs.50,000/- of Penalty.
5. C-60/2011 Shri Javed Alam P.O.Kuwari, Araria Rs.50,000/- of Penalty.
6. C-61/2011 Shri Mahadev Bach Director of Appellant No.1 Rs.10,000/- of Penalty.
7. C-62/2011 Shri Dhrub Deb Dubey Prop. Of M/s.Rajasthan Assam Roadlines Rs.25,000/- of Penalty.
8. C-63/2011 Shri Maqsood Alam P.O.Kuwari Araria Rs.25,000/- of Penalty.
2. Shri Arijit Chakraborty (Advocate) appearing on behalf of the Appellant argued that 14.7 MT of Betel Nuts of third country origin(valued at Rs.14.70 Lakh) were seized on 16.05.2008 by the Officers of DRI at a place named Rampur on Araria-Purnea National Highway from a truck bearing Registration No.RJ-14-2G-4000 on the basis of specific information. That the truck, valued at Rs.3,75,000/-, in which the Betel Nuts were loaded, was also seized. On preliminary enquiry the driver and khalasi of the truck stated that the consignment was brought from Kuwari and that the documents for the consignment were given to them by another person in an envelop. That as per the documents contained in the envelop 15,000 kgs. of Betel Nuts (187) bags were consigned to M/s.R.K.Enterprises, Kanpur by one M/s.Bahubali Attraction Pvt.Ltd., from Kolkata. Driver of the truck Shri Jagroop Singh and Khalasi Shri Anil Sharma under their statements recorded on 17th, 18th & 19th of May, 2008 stated that goods were loaded on to their truck from some tractors at a place named Kuwari at the instance of one Dubeyji of Gulab Bagh Purnea. Shri Maqsood Alam who brought the envelop of documents confirmed that the said documents were given to him by Shri Javed Alam of Araria, for whom he was working as a domestic help. That Revenue took an oral opinion of one Shri Ajit Kumar of Shivhar Sahakari Upbhokta Bhandar Pvt.Ltd., who opined the Betel Nuts to be of foreign origin. That the bags were bearing the markings of COCOA BEANS (Made in Malaysia) which also made the officer of DRI consider that Betel Nuts seized were of foreign origin. Shri Dhrub Deb Dubey of M/s.Rajasthan Assam Roadlines, Gulab Bagh, Purnea denied having sent driver Jagroop Singh on his truckNo.RJ-14-2G-4000 to Kuwari for loading Betel Nuts. That Shri R.K.Agarwal of M/s.R.K.Enterprises, Kanpur in his statement dated 19.05.2008 stated that on 23.04.2008 he was informed by one Shri Ramesh, Agent of Kolkata firm that goods have been dispatched and that Shri R.K.Agarwal also came to know that consignment has been detained by Patna Regional Unit. That he also stated to have purchased Betel Nuts from M/s.Bahubali Attraction Pvt.Ltd., Kolkata on many times earlier. That M/s.R.K.Enterprises has filed Commercial Tax Returns with the jurisdictional Vat authorities which investigation treated as arbitrary without conducting any verification. That Shri Bunty Agarwal (Shri Aloke Gupta) of M/s.Bahubali Attraction Pvt.Ltd., Kolkata (Appellant No.1) in his statement dated 17.05.2008, inter alia, confirmed to M/s.R.K.Enterprises, Kanpur being their customer and that Betel nuts are purchased from Siliguri, Andaman and Co-operative Society of Bhabla North 24 Parganas. That Shri Bunty Agarwal also stated that M/s.South Assam Carriers (P) Ltd. and M/s.Uniflex Freight Carriers are their transporters. That concerned Co-operative Societies not coming out for giving statements does not mean that bills provided by Appellant No.1 are bogus.
2.1 Learned Advocate further argued that first appellate authority under Order-in-Appeal dated 25.10.2010 has rejected the appeals of his clients on the following accounts only:
(i) That markings on the bags COCOA BEANS (Made in Malaysia) confirm that Betel Nuts were of foreign origin.
(ii) That statement of Driver Shri Jagroop Singh and the Khalasi Shri Anil Sharma clearly implicate that goods were loaded at a place different from Kolkata and that they had never gone to Kolkata.
(iii) That Truck No.RJ-14-2G-4000 never crossed Sales Tax Check Post, Dalkola during the period 01.05.2008 to 16.05.2008 as confirmed by Check Post authorities.
(iv) That both the Appellants M/s.Bahubali Attraction Pvt.Ltd. and M/s.R.K.Enterprises disowned Betel Nuts of truck No.RJ-14-2G-4000.
(v) That no payment to M/s.NCCF has been made by Appellant M/s.Bahubali Attraction Pvt.Ltd. through Drafts/Cheques.
2.2 With respect to findings of first appellate authority on 2.1 (i) learned Advocate had no objection because according to the appellant No.1 the confiscated Betel Nuts, purchased through NCCF & Co-operative Societies, were also of foreign origin. On the point of reliance placed by Revenue on the statements of Driver and Khalasi it was argued that these persons were detained by DRI on 17th, 18th & 19th to record a two page statement. That based on two statements above, which have also been negated by appellants, who get implicated by the Driver and Khalasi, can not be made as the sole basis of receipt of goods across the border. That none of these two persons have witnessed receipt of Betel Nuts across the border. That the information of Betel Nuts, sent through Truck No.RJ-2G-4000, was obtained over phone which was actually Registration No.RJ-14-2G-4000. That recipient of goods at Kanpur also had knowledge that goods meant for him were detained by Regional DRI Unit of Patna. That the statements of both the Driver and Khalasi can only be statements recorded in duress and can not be relied upon as vehicles not permitted to enter West Bengal in fact do so by unfair means. That M/s.R.K.Enterprises never denied ownership of the goods for which he placed order. That he was not aware of the correct registration number of the truck and even sender of the goods was also not aware of the truck no. So far as non-crossing of the Check Post at Dalkola is concerned, it was argued by the Advocate that since driver had no permit to go to Kolkata so he gave a wrong statement. That the Driver and Khalasi having given wrong statements, must have managed at Check Post, Dalkola without getting stamp of crossing the Check Post. On the point of not making the payment by Cheque/Draft to NCCF learned Advocate argued that payment by Appelalnt is always made in cash to cooperative societies who make draft in their name for getting goods through NCCF co-operatives. That though the goods are directly obtained by Appellant No.1 from NCCF but on paper it is shown as if the goods are obtained through Co-operative Societies.
2.3 That the case against Appellant No.1 is made only on presumptions and surmises and there is no corroboration of the statements of the Driver and Khalasi who only said the Betel Nuts were not brought from West Bengal. That Betel Nuts being non-notified goods, therefore, presumptions of their being of smuggled nature cannot be made on the basis of the statements of Driver and Khalasi who have not witnessed the crossing of Betel Nuts across the border and have given the statements to protect their own skins. Learned Advocate relied upon the following case laws.:-
(i) CC(Prev.), W.B. Calcutta v. Dungarmal Mohata [2006 (200) ELT 522(Cal.)]
(ii) Echjay Industries Ltd. v. UOI [2006 (200) ELT 528 (Guj.)]
(iii) CC(Prev.), W.B.Calcutta v. Raj Kumar Jaiswal [2006 (204) ELT 561(Cal.)]
(iv) Royal Industries Ltd. v. UOI [2006 (204) 564 (P & H)
(v) CC (Prev.) v. Mahendra Singh Purohit [2008 (225) ELT 426(Bom.)]
(vi) CCE & C, Nashik v. Krishna Filaments Ltd. [2008 (225) ELT 427(Bom.)]
(vii) CC (Prev.), Mumbai v. Aakash Enterprises [2006 (205)ELT 23(Bom.)]
(viii) CCE v. Gupta Steel [2006 (205) ELT 24 (Guj.)]
(ix) CC(Prev.), Mumbai v. Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom.)]
(x) Topland Enginees Pvt.Ltd. v. UOI [2006 (199) ELT 209(Guj.)]
(xi) Lakhi Nath Rai v. CC, Patna [2003 (159) ELT 662 (Tri.-Kolkata)]
(xii) Laxmi Narayan Sharma v. CC, Patna [2002 (142) ELT 74 (Tri.-Kol)]
(xiii) Raj Kumar Keshari v. CC(Prev.), Calcutta [2001 (136) ELT 745(Tri-Kolkata)]
(xiv) Kukil Das v. CC, Patna [2004 (174)ELT 345(Tri.-Kolkata)]
(xv) CC, Patna v. Dwarika Prasad Agarwal [2012 (275) ELT 183(Pat.)] (xvi) CC(Prev.), W.B., Kolkata v. Sudhir Saha [2004 (172) ELT 26(Cal.)] (xvii) Sonali Traders v. CC, Allahabad [2013 (298) ELT 302 (Tri.-Del.)] (xviii) Krishna Das v. CC, Lucknow [2014 (303) ELT 548(Tri.-Del.)] (xix) Directorate of Revenue Intelligence v. Moni [2010 (252) ELT 57 (Del.)] 2.4 That his other clients did not have any knowledge of the goods being of smuggled nature, therefore, no penalties were imposable upon them and vehicle was not liable to confiscation under the Customs Act, 1962. That the Betel Nuts under consideration were legally procured and no penalties upon his clients can be imposed.
3. Shri S.Nath, AC(AR) appearing on behalf o the Revenue argued that both Appellant No.1 and M/s.R.K.Enterprises, Kanpur have denied the ownership of Betel Nuts seized from truck bearing registration No.RJ-14-2G-4000. Learned AR made the Bench go through para 1.17 xvii & para 1.18 xiv of the Order-in-Original dated 30.04.2010, passed by the Adjudicating authority, to highlight that the Betel Nuts claimed were dispatched from Kolkata in Truck No.RJ-02G-4000 as per the relied upon transport documents which were different from Betel Nuts seized from Truck No.RJ-14-2G-4000. That both the Driver and Khalasi have stated that they never went to Kolkata as there is no permit for going to West Bengal and also that Betel Nuts were loaded from a place named Kuwari. That no entry of Truck No.RJ-14-2G-4000 was found in the records of Sales Tax Office, Dalkhola Check Post. That the bags seized carried the markings COCOA BEANS (Made in Malaysia) which mean seized Betel Nuts of foreign origin were brought to India through Indo-Nepal border. Learned AR thus strongly defended the order passed by the first appellate authority.
4. Heard both sides and perused the case records. The issue required to be decided in these proceedings is whether Betel Nuts, seized by the officers of DRI at a place Rampur on Araria Purnea National Highway, from truck bearing Registration No.RJ-14-2G-4000, are smuggled across Indo-Nepal Border or the same are duly covered by the documents furnished by Appellant No.1. It is the case of the Revenue that the documents were pertaining to Betel Nuts loaded on a different truck bearing registration No.RJ-2G-4000 and not truck No.RJ-14-2G-4000 as stated by Appellant No.1 and Shri Ratan Kumar Agarwal, Prop. of M/s.R.K.Enterprises, Kanpur and that none of the appellants have claimed the ownership of the goods seized from truck No.RG-14-2G-4000. It is observed from the case records that vehicle bearing Registration No.RJ-14-2G-4000 has been written as follows, at various places in the Records of this case and was found to be registered in the name of Driver/Owner Shri Jagroop Singh in Rajasthan.:-
Sl.
No. Written as Page No. of Appeal Memo Written by 1 RJ-142-G-4000 120 Adjudicating authority in Order-in-Original dated 30.04.2010.
2.
RJ-14/2G-4000 125 Advocate of Appellant No.1.
3.
-do-
126Advocate of M/s.R.K.Enterprises, Kanpur.
4. RJ-142G-4000 129 Advocate of Driver/owner and Khalasi
5. RJ-142J-4000 130
-do-
6. RJ-14-2G 138 Para 4.1 of Order-in-Original dated 30.04.10.
7. RJ-2G-4000 139 Discussions & findings of Adjudication authority (30.04.2010)
8. RJ-14-26 173 Discussions & findings of Order-in-Appeal dated 25.10.2010.
9. RJ-14-26-4000 173
-do-
4.1 In view of the above errors/omissions committed by the Adjudicating authority, Advocate of the Driver/Khalasi and the first appellate authority it is required to be seen whether truck, mentioned in the documents produced by appellants as RJ-2G-4000, is the same as truck No.RG-2G-4000 as claimed by Appellant No.1. Shri B.N.P.Gupta, Advocate of M/s.Bahubali Attraction Pvt.Ltd. and Shri Mahadev Bach, in his reply dated 29.10.2009 before the Adjudicating authority (para 5 on internal page 21 of the Order-in-Original dated 30.04.2010), argued that consignment of 187 bags of Betel Nuts was sent to M/s.R.K.Enterprises, Kanpur vide consignment Note 160840 and Invoice No.BA-092 through Lorry No.RJ-14/2G-4000. Further in para 7 on the same page an averment was also made that truck carrying the consignment got delayed due to some mechanical fault and later detained by DRI Authority of Patna near Zero Mile, Purnea. This fact gets corroborated by the statement dated 19.08.2008 of Shri Ratan Kumar Agarwal of M/s.R.K.Enterprises. Shri Aloke Gupta @ Bunty Agarwal of Appellant No.1 in his statement dated 19.08.2008 also stated that the transport company has not given any consignment note to M/s.Bahubali Attraction Pvt.Ltd. and the firm still does not have truck No. on which consignment of Betel Nuts was loaded on 23.04.2008. This portion of the statement of Shri Aloke Gupta, that they were not aware of the exact registration number of the truck, is contrary to the admission of Shri R.K.Agarwal that truck No.RG-2G-4000 was different than truck No.RJ-14-2G-4000. When a sender of the goods is also not sure of the truck number through which the consignment was sent then the proposed recipient cannot know whether the goods were dispatched by truck No.RJ-2G-4000 which was different than truck No.RJ-14-2G-4000. That only evidence against Appellant No.1 is the statements of Shri Jagroop Singh and Shi Anil Sharma Driver/owner and Khalasi of truck No.RJ-14-2G-4000, wherein it is stated that they never went to Kolkata as the vehicle does not have permit to go to Kolkata. Appellant No.1 has claimed in their reply to the Show Cause Notice as reproduced in the Order-in-Original that Betel Nuts were sent through truck having registration No.RJ-14-2G-4000 and in the grounds of appeal also it has been taken that digits 14 not getting mentioned in the transport documents was a clerical omission. The argument taken by Appellant No.1 has some weight because truck registration number must have been communicated through phone/mobiles where some digits can get omitted. Such an omission is plausible in view of the omissions indicated in para 4 above, where inspite of truck No.RJ-14-2G-4000 being as record, a different number is written by various persons including the Adjudicating authority and the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore Bench is of the considered opinion that vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000.
4.2 It is also the case of appellant No.1 that vehicles not having permit to enter West Bengal actually enter Kolkata also by adopting unfair practices. Presuming the argument of the Appellant to be true, the Driver of such a vehicle, having entered in the state of West Bengal (Kolkata) and on way back is caught by an investigating agency, will be the last to admit that it entered Kolkata (West Bengal). Also such vehicle driver/owner will ensure that his vehicle registration number does not get recorded/reflected in the records of a Check post. In the light of the above possibilities the statements of the Driver/Khalasi of vehicle No.RJ-14-2G-4000 cannot be made the sole basis for upholding a case against all the Appellants. Recording of the statements of such Driver/Khalasi becomes more glaring when a Driver/owner brings a consignment of Mustard Oil from Rajasthan and is intercepted by DRI and interrogated for three days before recording his statement. Driver/owner may have thus given a statement which will save his driving licence and source of livelihood. At the same time it is observed that the entire statement of the driver is not corroborated by facts. With respect to Dubeyji it is stated by the Driver that he has sent him to Kuwari for loading Betel Nuts which were brought in tractors. On the contrary Shri Dhruv Dev Dubey of M/s.Rajasthan Assam Roadlines, Purnea, in his statement, as mentioned in para 1.08, stated that he never sent Jagroop Singh or his truck No.RJ-14-2G-4000 to load Betel Nuts from Kuwari. He also accused Jagroop Singh of unnecessarily dragging his name into the entire episode. The above contradiction in the statement of transporter of Appellant No.1 and the Driver Shri Jagroop Singh clearly brings out that entire story narrated by the Driver/Khalasi, in their statements recorded after interrogation for three days, is not entirely correct. It is now a well accepted legal principle that only a part of the statement, favorable to the department, cannot be considered as acceptable and that the entire statement has to be accepted or rejected. There is no other evidence that Betel Nuts seized were not obtained by the Appellant No.1 from legalized channels.
4.3 Delhi High Court in the case of Directorate of Revenue Intelligence vs. Moni (supra) on the issue of admissibility of a confessional statement, held as follows in para 10, after citing several case laws:-
10.?This Court in the case of Vinod Kumar Sahdev v. Union of India - 2009 (4) JCC 2636; in the case of Abid Malik v. U.O.I. - 2009 (5) AD (Delhi) 749; in the case of Harpreet Singh Bahad v. D.R.I. Bail App.2211/08 decided on 23-9-2009 as well as in the case of Vikas Mohan Singhal v. D.R.I. Crl.M.C. 1815/2005 decided on 12-8-2009 [2009 (243) E.L.T. 507 (Del.)] has taken a consistent view that if the case of the prosecution whether launched by Custom Authorities, FERA Authorites or by Directorate of Revenue Intelligence is solely based upon the statement of the accused recorded by the Department pursuant to issuance of a notice given by them only, which stands retracted and there is no corroboration of the same, then the said statement cannot be the basis of conviction of the accused whether it is a statement recorded under Section 40 of the Foreign Exchange Regulation Act or under Section 67 of the NDPS Act or under Section 108 of the Customs Act. In this case Appellant No.1 has not given any confession statement at any stage. Reliance of third party statements without extending cross-examination is not acceptable as evidence when the entire facts of the statement are not true. Minor procedural irregularities in the documents produced by the Appellant No.1 cannot be considered sufficient to hold that Betel Nuts seized were different than the Betel Nuts procured by Appellant No.1 and were of smuggled nature. In view of the above observations, Appeals filed by the Appellants are required to be allowed by setting aside Order-in-Appeal dated 25.10.2010 as a case cannot be upheld on the basis of presumptions and assumptions. No investigations have been done whether any truck having registration No.RJ-2G-4000 also exists. Mobile calls of the Appellants made before the seizure have also not been investigated by the department which could have given vital clue regarding movement of persons and vehicle No.RJ-14-2G-4000.
5. Appeals filed by the Appellants are allowed with consequential reliefs, if any.
(Pronounced in the court on 19.04.2016.)
SD/
(H.K.THAKUR) MEMBER(TECHNICAL)
sm
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Appeal No.CA-56-63/11