Custom, Excise & Service Tax Tribunal
(Arising Out Of Order-In-Appeal ... vs Shri Nand Lal Soni on 29 June, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
Single Member Bench
Date of Hearing/Decision: 29.06.2010
For approval and signature:
Honble Mr.Rakesh Kumar, 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 authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
1. Customs Appeal No.385 of 2009-SM
Customs Cross Objection No.234 of 2009
(Arising out of Order-in-Appeal No.75-76-CUS/ALL/2009 dated 31.03.2009 passed by the Commissioner of Customs & Central Excise(Appeals),Allahabad)
CC, Lucknow Appellant
Vs.
Shri Nand Lal Soni Respondent
2. Customs Appeal No.386 of 2009-SM
Customs Cross Objection No.235 of 2009
(Arising out of Order-in-Appeal No.75-76-CUS/ALL/2009 dated 31.03.2009 passed by the Commissioner of Customs & Central Excise(Appeals),Allahabad)
CC, Lucknow Appellant
Vs.
Shri Jai Prakash Sonar Respondent
Present for the Appellant : Shri S.N.Singh, JCDR
Present for the Respondent: Shri S.P.Ojha, Advocate
Coram: Honble Mr. Rakesh Kumar, Member (Technical)
ORDER No.____________/
PER: RAKESH KUMAR
The facts leading to these appeals filed by the Revenue and cross objection filed by the respondents are, in brief, as under:
1.1 On 14.1.2008, the police officers of Thuthibari, a place 6 KM from Indo Nepal border, seized and recovered 37 bars of sliver weighing 23953 gms, valued at Rs.4,59,081/- from the possession of two persons viz. Shri Nand Lal Soni and Shri Jai Prakash Sonar. The goods were, thereafter, handed over to the customs officers of Nichlaul and the same were seized under the reasonable belief by the customs authorities the same were going to be smuggled out of India through into Nepal. The statements of Shri Nand Lal Soni and Shri Jai Prakash Sonar were recorded under Section 108 of the Customs Act, 1962. Jai Prakash Sonar in his statement dated 16.01.2008 recorded under Section 108 of Customs Act, 1962 stated that 37 pcs of silver bars weighing 24078 gms belonged to him, that he was in the business of old silver ornaments and readymade sliver ornaments; that the silver recovered from his possession and from Shri Nand Lal Soni accompanying him was being taken by them to Nepal; and that he had purchased old ornaments from the Nepal and some silver from Nichlaul, got them melted and converted into silver bars at Allahabad and the same were being carried from there to Nepal. Shri Nand Lal Soni in his statement dated 16.01.2008 recorded under Section 108 of the Customs Act, 1962, stated that he was accompanied Jai Prakash Sonar, that he was carrying silver to Nepal at the request of Jai Prakash Sonar to assist him and that 18 pcs of silver bars recovered from him belonged to Jai Prakash Sonar and remaining 19 pcs of silver bars were in possession of Jai Prakash Sonar; and that he had no knowledge that carrying sliver to Nepal is an offence. It is on this basis, that the SCNs were issued to the appellants for confiscation of silver from them and also for imposition of penalty on them. The SCNs were adjudicated by the Additional Commissioner vide order-in-original dated 15.1.2008 by the silver under seizure was confiscated under section 113 and penalty of Rs.8,000/- each was imposed on both the appellants under Section 114 of Customs Act. The Additional Commissioner in this order held that the appellants were taking the silver under seizure to Nepal through an unauthorized route i.e. the routes other than the routes specified for export to Nepal under the notification No.63/94 dated 22.11.94 issued under Section 7(1) of the Customs Act, 1962. On appeal to the Commissioner (Appeals), the Commissioner (Appeals), vide order in appeal No.75-76/CUS/ALL/2009 dated 31.3.2009 set aside the order of the Additional Commissioner and allowed the appeals of the appellants with consequential relief. The Commissioner (Appeals) while allowing the appeals of the appellants observed that neither the police authorities nor the Customs authorities could put forth any evidence that could show the there was an attempt by the appellants to cross over to Nepal with the goods in question. It is against this order of the Commissioner (Appeals) that the present appeals have been filed by the Revenue. The respondents have also filed memorandum of cross objections.
2. Heard both sides.
3. Shri S.N.Singh, learned JCDR, assailing the impugned order pleaded that the appellants were intercepted by the police at a place 6 kilo meters from Indo Nepal border with 37 bars of silver of about 98% purity weighing 24078 gms; that both the appellants in their respective statements recorded under Section 108 have stated that they were carrying the silver to Nepal; that these statements have not been retracted by them and hence are admissible as evidence; that the place where the appellants had been intercepted with the silver was very close to Indo-Nepal border but there was no authorised route for export of the goods to Nepal or import of the goods from Nepal as notified by Notification No.63/94 dated 22.11.94 issued under Section 7(1) of the Customs Act, 1962 anywhere near that place, that the Indo Nepal Treaty also specified certain route for mutual trade but the place where the appellants had been intercepted with the silver was not near any of such specified routes; that it is, therefore, clear that the appellants were attempting the export of the silver through unauthorized route and hence the silver was liable for confiscation under Section 113, that in view this, the silver under seizure has been correctly confiscated under Section 113 and the penalty has been correctly imposed on the appellants under Section 114; and that the Commissioner (Appeals)s finding that there was no evidence with regard to the attempt of smuggling of silver through unauthorized route is incorrect in view of the circumstances in which the silver was seized and the statements of both the appellants, which have not been retracted by them. He, therefore pleaded that in view of this, the Commissioner (Appeals)s order is not correct.
4. Shri S.P.Ojha, Advocate, the learned Counsel representing the respondents, pleaded that under section 7(1) (c) of Customs Act, 1962, the Central Government by notification may specify the routes by which alone the goods or any class of goods specified in the notification may pass by land, inland water into or out India, that in the Notification No.63/94-cus (NT) dt.21.11.94 issued under Section 7(1) (c) specifying the route through which the goods can be imported though Nepal or exported to Nepal, the silver is not mentioned, that the fact that the sliver could be exported to Nepal has been admitted in the order-in-original passed by the Additional Commissioner; that the respondents had been intercepted by the police at Thuthibari, a place 6 KM from Indo Nepal border; that there is no evidence that the respondents were going to cross into Nepal with sliver through unauthorized route and it is possible that they could have entered through some authorized route and that in view of this, the Commissioner(Appeals) has correctly set aside the order-in-original passed by the Additional Commissioner. He also cited the judgment of the Tribunal in the case of Debdas Adhikary & Dinbandhu Adhikary vs. CC, Kolkata reported in 2008 (222) ELT 299 wherein in similar circumstances, the Tribunal had held that the appellants could not be said to have attempted the export of silver illegally.
5. I have carefully considered the submissions from both sides and perused the records.
5.1 There is no dispute about the fact that the respondents had been intercepted by the police at Thuthibari, a place 6 KM from Indo Nepal border and they were in the possession of 37 pcs of sliver weighing 24078 gms. There is no doubt that the place where the respondents had been intercepted was not close to any of the routes for legal import and export notified under section 7 (1) (c) of the Act or Indo Nepal Treaty. Both the respondents in their respective statements recorded under Section 108 have stated that they were carrying the silver to Nepal and these statements have not been retracted by them. As held by Honble Supreme Court in the case of Naresh J.Sukhwani reported in 1996 (83) ELT 258 (SC) a statement of a person recorded by gazetted customs officer under section 108 inculpating him in contravention of the provisions of Customs Act, if not retracted by the person, is admissible as substantive evidence. In this case, admittedly the respondents have not retracted their statements and both have clearly admitted that the silver was being taken by them to Nepal and the background in which these persons were intercepted with silver bars, also supports their statements with such evidence, no further corroboration was necessary. In view of this, I hold that the Commissioner (Appeals)s order holding that there was no evidence of illicit export is not correct since both the respondents have admitted the attempt to export of silver to Nepal through unauthorized route. Hence, the impugned order setting aside the orderin-original is not correct. The same is, therefore, set aside and the order-in-original passed by the Additional Commissioner is restored. The Revenues appeals are allowed and the memorandums of cross objections filed by the respondents are dismissed.
(RAKESH KUMAR)
MEMBER (TECHNICAL)
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