Custom, Excise & Service Tax Tribunal
Ripon Ahmed vs Shillong on 3 June, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 75508 of 2024
(Arising out of Order-in-Appeal No. 42/GHY(A)/COM/CUS/SH/2024 dated 17.01.2024
passed by Commissioner (Appeals), CGST, Central Excise & Customs, Guwahati)
Shri Ripon Ahammed
(S/o Shri Nurul Haque, Vill & P.O. Sovapur, P.S. Sonamura
Dist. Sepahijilla, Tripura-799131)
Appellant
VERSUS
Commr. of Customs (Preventive), NER, Shillong
(110, Mahatma Gandhi Road, NER, Shillong-793001, Meghalaya)
Respondent
APPEARANCE :
Mr. Pranab Sikdar, Consultant for Appellant Mr. S. Debnath, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) FINAL ORDER NO.76012/2024 Date of Hearing : 03 June 2024 Date of Decision: 03 June 2024 PER R. MURALIDHAR:
On 19/08/2020, around 06:30 PM, a vehicle bearing Registration No.TR-07-0522 carrying 154 numbers of smart mobile phone were intercepted by the Amtali Police officials. They found that no invoice or documents were available with the present Appellant Shri Ripon Ahammed or with the driver Shri Hanif Maishan. Thereafter on the suspicion that the smart mobile phones were being exported illegally to Bangladesh, the police officials seized goods and the vehicle and the Appellants were handed over to the Customs officials for taking further necessary steps. After due process, Customs officials seized 154 numbers of smart mobile phones and the vehicle which was used for transportation of these goods. The present Appellant, Shri Ripon Ahammed recorded statement on 20/08/2020, wherein he has stated that the 154 numbers of smart phones were received in three cartons from one Shri Bijoy kumar Das, proprietor of M/s. M. T. Enterprise, 2 Customs Appeal No. 75508 of 2024 Melarmath, Agartala and that person has directed the Appellant to supply these mobiles to various shops at Bishalgarh Market, Bishramganj Market, Udipur Market, Sonamura market all located in the State of Tripura. He submitted that no invoices/documents were issued by Shri Bijoy Kumar Das. After due process, the Adjudicating Authority passed an Order absolutely confiscating the seized 154 smart phones valued at Rs. 40,10,110/-. He also imposed penalty of Rs.1,41,000/- on the Appellant. The Adjudicating Authority also confiscated the vehicle giving an option to redeem the same on payment of Rs. 75,000/-. Penalties have been imposed on all the noticees. In the present case, the Appellant Shri Ripon Ahammed has filed the appeal before the Tribunal being aggrieved by the absolute confiscation of the mobile phones and penalty of Rs. 1,41,000/- imposed on him under section 114 of the Customs Act, 1962.
2. The Learned Consultant appearing on behalf of the Appellant submits that vehicle was intercepted by Police Staff of Amtali when the vehicle was moving within the territory of India. He submits that it is a common trade practice by the sellers of mobile phones to sell the same without invoice/bills so as to avoid payment of State Vat Tax. In this case, the Appellant has clearly given the details of the owner of the said 154 numbers of smart mobile phones, Shri Bijoy Kumar Das. His Mobile number was also given by the Appellant. Similarly vide his Statement dated 19/08/2020 and 20.08.2020, the Appellant has also given the full details of the persons to whom the mobiles were to be delivered.
3. The Learned Consultant draws my attention to Para 10 of the OIO wherein the details of the Statements recorded by the Appellant is extracted. From these extracts, it is seen that the Appellant has named (i) Mr. Raju of Bishalgarh market towards purchase of 25 pieces (ii) Ronny of Bishalgarh Market purchase of 30 pieces of mobile phones, (iii) Ratan of Bishramgang Market purchase of 25 pieces of mobile phones, (iv) Sanjit of Udipur Market for purchase of 25 mobile phones (v) Faruk Mia of Sonamura for purchase of 30 pieces and (vi) Kaiyam of Sonamura Market for purchase of 40 pieces of Mobile phones. In most of the cases, the mobile numbers of these persons have also been provided by the Appellant. The Learned Consultant submits 3 Customs Appeal No. 75508 of 2024 that the Department has not taken up any investigation with these persons to check the veracity of the Statement given by the Appellant. No investigation was taken up. No statement was recorded from any of these persons. The Department has recorded only the statement from Shri Bijoy Kumar Das, who has denied having supplied 154 numbers of mobile phone to the appellant without invoice/bill. He further submits that though this statement has been used by the Revenue to implicate the present Appellant but at the same time Revenue at Para 23.3 of the OIO has clearly held that Shri Bijoy Kumar Das, proprietor of M/s. M. T. Enterprise, Agartala did not co-operate with the Department and did not produce any copy of the Bank Statement, IT Return and copy of Balance Sheet etc. The Adjudicating Authority has noted that "he wants to hide the facts that he, Sri Bijoy Kumar Das, Proprietor of M/s. M. T. Enterprise is involved in the said seizure case. The statement subscribed by him is to save him from the clutches of law and misguide the investigating agency and is liable to be penalized under Section 114 of the Customs Act, 1962". The Learned Consultant submits that the Department itself is in two minds. On the one hand they take stand that the present Appellant is the owner of the seized goods and on the other hand they take a stand that Shri Bijoy Kumar Das, co-noticee is the owner. He submits that in the absence of any corroborative evidence to the effect that the goods were being transported to Bangladesh without documents and entire seizure and the proceedings have been done purely only assumptions and presumptions basis. He submits that even in the statement recorded from Shri Hanif Maishan, driver of the vehicle, has also stated that they were going to deliver these Mobile Phones to shops situated at Bishalgarh, Sonamura etc. which are very much part of Indian Territory. In view of these submissions, the learned Consultant prays that the present Appeal may be allowed.
4. The Learned AR reiterates the findings of the Adjudicating Authority and supports the confiscation and penalties imposed.
5. Heard both sides and perused the Appeal Papers and relevant documents.
4Customs Appeal No. 75508 of 2024
6. Admittedly, the goods in question were seized when they were moving within the territory of India about more than 60 Kms away from Bangladesh Border. Just because the Appellant was not carrying any proper document, it cannot be directly presumed that the goods were being illegally transported to Bangladesh. The Appellant has given the details of the person from whom he has received the goods i.e. Shri Bijoy Kumar Das and the names and mobile numbers of the persons to whom delivery was to be done at various places within three districts of State of Tripura. It is seen from the records that inspite of having the names and mobile numbers of the persons who had placed the order to purchase the mobile phones, no attempt has been made by the Department to verify the facts from these persons. Therefore, I find that the Department has failed to provide any proper, cohesive and corroborative evidence to the effect that the goods in question were to be smuggled to Bangladesh illegally. In the absence of such evidence it is clear that the proceedings have been initiated only on the basis of presumptions and assumptions.
7. In view of the foregoing, I allow the present Appeal and set aside the absolute confiscation of 154 number of mobile phones and penalty of Rs. 1,41,000/- imposed on the Appellant.
8. Since the Orders in respect of other noticees are not under challenge before me, it is made clear that no view is being taken in respect of those noticees.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja