Custom, Excise & Service Tax Tribunal
) Shri Yar Nabi Sheikh vs Commr. Of Customs ( Prev.), W.B on 17 October, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
Customs Appeal Nos. 157, 158 & 161/2008
(Arising out of Order-in-Appeal No. Prev/Cus/44 to 46/2008 dated-29.02.2008 passed by the Commissioner of Customs (Appeals), Kolkata read with CESTAT Order No. S-603-605/KOL/08 dated- 25/07/2008)
For approval and signature:
Honble Shri D.N. Panda, Judicial Member
1) Shri Yar Nabi Sheikh
2) Shri Atibur Rahaman
3) Shri Aroj Ali Sheikh
Applicant (s)/Appellant (s)
Vs.
Commr. of Customs ( Prev.), W.B.
Respondent (s)
Appearance:
NONE appeared for Appeal No.157/08 (Mr. Yar Nabi Sheikh) Sri Tanvir Hussain, Advocate ( For Appeal No. 158/08 & Appeal No. 161/08 for the Applicant/Appellant (s) Sri S.B. Shinde, JDR for the Respondent (s) CORAM:
Honble Shri D.N. Panda, Judicial Member Date of Hearing : 17/10/08 Date of decision: 17.10.2008 Date of Pronouncement : 14.11.2008 ORDER NO Per Shri D.N. Panda
1. These appeal have arisen against the order dated 29/2/08 passed by the Ld. Commissioner of Customs (Appeal) against de novo order of adjudication dated 28/9/07. Originally the matter was adjudicated on 8/5/06. Consequent on dropping of adjudication proceeding, Revenue was in appeal before the Ld. Commissioner (Appeal) who set aside the dropping order in appeal case No. PREV/CUS-62/07 dated 28th April, 2007 and remanded back the matter to the Ld. Adjudicating Authority for passing an appropriate order. Accordingly, the de novo order dated 28/09/2007 is the outcome.
2. The Ld. Adjudicating Authority in de novo proceeding directed confiscation of the seized goods, granted option for redemption of the seized vehicle with imposition of personal penalty of Rs.25,000/- on three appellants who are before this Forum in aforesaid appeals. The Ld. Appellate Authority confirmed the de novo order except reduction of the redemption fine in respect of the truck to Rs.50,000/- as against the redemption fine of Rs.1.00 Lakh imposed in de novo adjudication.
3. The appellant Shri Yar Nabe Sheikhin in appeal case No.157/08 was the driver of the vehicle bearing Registration No. WB-03/3229. But none appeared on behalf of the appellant when the matter was called on 17/8/08. Accordingly the matter was dismissed for no pursuation by the appellant.
4. So far as the appellant Sri Atibur Rahman in appeal case No. 158/08 and the appellant Shri Aroj Ali Sheikh in appeal case No. 161/08 are concerned they were represented by Ld. Advocate Sri Tanbir Hussain.
5. Ld. Commissioner (Appeal) while passing the order was of the following view :
i) that the H.O. of the firm claimed by Appellant Sri Yar Nabi Sheikh at Kolkata, having their license issued from the Calcutta Municipal Corporation as a transport agent with godown for the period of 01.04.03 to 31.03.04 (renewed on 28.01.05 for the period of 01.04.04 to 31.03.05), had no locus standi at all at the material time of seizure to do any business involving sale/purchase of any commodity in terms of the said license;
(ii) The purchase memos obtained from the appellant were all found to be used up from the same memo book, pertaining to their so called branch office at Kaliachak, although those were representing purchases from different localities;
(iii) There had been no payment of Sales Tax on record on behalf of the said firm after the period ending March, 2004;
(iv) The concerned Trade Licenses (Certificates of Enlistment) elucidate that the so-called branch office at Beldanga obtained such license from the Beldanaga Municipality on 10.07.04, Kaliachak-I gram panchayat issued the license to the Kaliachak office on 30.08.04 and such license was issued to the Panjipara branch on 14.07.04, all about 10 months later than the so called inception of the said firm on 23.09.03
(v) The licenses were all issued in the style of the claimed firm but the names of the respective proprietors were shown as Atibur Rahaman, Vill & P.O. Panjipara, Dist.- N. Dinajpur for the Panjipara branch; as Md. Atibur Rahaman & Partners, Vill. Barua, P.S. Beldanga, Dist.- Murshidabad for the Kaliachak branch; as Atibur Rahman & 7 others for the Beldanga office; and as Md. Ibrahim & others for the H.O. at Kolkata, which are not in perfect agreement with the depositions of the appellant no. 1 in this respect;
(vi) None of the branches was found to maintain bank accounts excepting the Beldanga office ( which again had been found to be virtually non existent as per the version of the local residents); these accounts were in turn opened before the so-called inception of the said firm on 23.09.03 and there had been only a single entry of deposit, viz. of Rs.25,000/-, in the A/c. maintained with the Allahabad Bank, Beldanga branch and only two entries, viz. a deposit of Rs.13,000/- and an withdrawal of Rs.20/-, thereby maintaining a balance of Rs.12,280/- only in the A/c. maintained with the Murshidabad Gramin Bank, Mirjapur branch; these are hardly commensurate with the business of the level as described by the appellant no. 1; and
(vii) That the firm did not maintain any documented records pertaining to their trade at their so-called head office; and that they dealt in lacs of rupees absolutely on basis of good faith & in terms of credit most of the times, and that too without any record of written agreements and/or whereabouts of the purported sellers/buyers, do not in fact speak high of the credibility of such statements.
6. With the aforesaid observations Ld. Commissioner was of the opinion that the anomalies in respect of evidence on record and fabricated documents led by the Appellant Sri Yar Nabi Sheikh pressed to confirm the de novo adjudication with the reduction of redemption fine.
7. Ld. Counsel Shri Tanbir Hussain appearing on behalf of the appellants No. 1 and 3 (before this forum) argued that the goods seized by BSF and subsequently handed over to Customs were not actually attempted to be exported but those goods were moved from Kaliachak at Malda on 29/06/2004 to Rajabazar, Kolkata. When there was no attempt to export, seizure of the goods was unwarranted and the confiscation was uncalled for. Therefore, he pleaded that the goods may be released and the penalties imposed may be waived, also redemption fine waived. The goods having been seized under suspicion, seizure was illegal.
8. Ld. D.R. Shri Shinde appearing on behalf of the Revenue submitted that the appellate order brought out fraud of appellants and being reasoned and speaking is not necessary to be interfered.
9.1. Heard both sides and perused the record.
9.2 There is no dispute that the truck No. WB-03/3229 was carrying the impugned goods on 27/9/04 and was intercepted by BSF personnel at Nimtita at about 04.00 hrs. Subsequently the truck alongwith goods were handed over to Dhulian Customs station. At the time of interception, driver and other persons on the board of the truck fled away for which ownership of the goods and the carrier could not be known to the authorities below. The appellant Shri Atibur Rahaman came farward on 28/9/04 to claim ownership of the goods as well as the vehicle. His statement was also recorded on 16/2/05 under Section 108 of the Customs Act, 1962 about the modus operandi of his business. Shri Yar Nabe Sheikh (Appellant No. 2 before this Forum) who was the driver of the vehicle and Shri Aroj Ali Sheikh (Appellant No. 3 before this forum) were examined on 3.3.05 by Customs Authority under Section 108 of the Act. Subsequent to the above development, there was a follow up enquiry conducted by the authorities about the modus operandi of the appellant. Ld. Appellate Authority found that the appellant Shri Atibur Rahaman had no locus standi at the material time of seizure to do any sales, involving sale/purchase of commodity in terms of license issued to him. The purchase memos obtained from him were found to have been used for different purpose but not for the impugned goods to transport and deliver at the destination. There was no evidence of payment of sales tax. The authorities also found that there was a discrepancy in the license. Dealing of the transactions were not verifiable in absence of bank account. Observing that the evidence were itself an anomaly and fabricated one, the impugned goods were seized and confiscated. All these findings remained uncontroverted in the course of hearing before this forum.
10. The Ld. Counsel in the course of hearing filed a route map claiming that the goods in question had not reached the Customs boundary for attempted export for which there was no attempt to export. But neither he argued on the truthness of documents to prove ownership of the goods nor he argued to prove that there was value of evidence since the evidence adduced was discarded being fabricated. Written submission of the Ld. Counsel was only to show transportation of the goods for no attempted illegal export. In absence of any evidence showing proper ownership of the goods, those were bound to be seized and confiscated. The appellants without any evidence to discard the appellate findings as aforesaid have failed to prove ownership of the goods and the existence of goods by a valid document remained questionable. Therefore, for such reasons, the appeal of the appellants failed and the first appellate order is confirmed.
11. In the result, all the three appeals are dismissed.
( Pronounced in the court on 14.11.2008 )
Sd/- 14.11.2008
(D.N.PANDA)
JUDICIAL MEMBER
k.b/-
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Customs Appeal Nos. 157, 158 & 161/2008
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