Custom, Excise & Service Tax Tribunal
Mr. Riyasat Ali Warshi vs Commissioner Of Customs (Prev) W. B, ... on 11 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. C/235/2010
(Arising out of Order-in-Appeal No. 01/CUS/CC(P)/WB/2010 dated 29.01.2010 passed by the Commissioner of Customs (Prev), WB, Kolkata.
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?
MR. RIYASAT ALI WARSHI
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs (Prev) W. B, Kolkata
Respondent (s)
Appearance:
Shri Sukhendu Bhattacharyya & Debi Parbat, Adv, Sri R. N. Bandopadhyay, Consultant for the appellant (s) Shri A. Kumar, AC (AR) for the Revenue (s) CORAM:
Honble Shri H.K.Thakur, Member(Technical) Date of Hearing/Decision: 11.04.16 Date of Pronouncement: 11.04.16 ORDER No.FO/A/75272/16 Per Shri H.K.Thakur This appeal has been filed by appellant against OIO No. 01/CUS/CC(P)/WB/2010 dt 29/1/2010 passed by Commissioner of Customs (Prev) West Bengal Kolkata as Adjudicating authority. Under the OIO dt 29/01/2010 Adjudicating authority has absolutely confiscated 6150 Kgs of Red Sanders wood under Sec 113 of the Customs Act 1962 and also, interalia, imposed a penalty of Rs. 5 lakh upon the appellant Sh. Riyasat Ali Warshi of Kanpur under Sec 114 (i) of the Customs Act 1962.
2. Sh. Sukhendu Bhattacharyya (Advocate) Sh. Debi Parbat (Advocate) and Sh. R. N. Bandopadhyay (Consultant) appeared on behalf of the appellant. Sh. S. Battacharyya argued that his client is a registered dealer of Red Sanders wood at Kanpur. That 6150 Kgs of Red Sanders seized on 13/7/2008 was legally acquired by his client under legal & valid documents from M/s Subinoy Karfa Alamganj, Burdwan through Sh. Gopal Krishna Thakur who acted as an agent of the appellant in procuring Red Sanders wood. That a valid transport transit pass No. 0558905 dt 15/5/2008 was obtained from the Forest Range office Burdwan Division for movement of 9998 Kgs of Red Sanders from Burdwan to Kolkata. Learned Advocate made the bench go through the copies of the documents, Transit permit & the contract entered between the appellant and Sh. Gopal Krishna Thakur. That the special hammer marks shown on transit pass No. 0558905 dt 5/5/08 were also found on the seized Red Sanders logs as per joint inspection done on 3/11/2009. That actually a quantity of 9998 kgs of Red Sanders wood was purchased which was lying in the godown but it is not known as to why only 6150 Kgs were shown to have been seized by the departmental officers. Learned Advocate also made the bench go through Para 3, on internal page 40 of the OIO dt 29/1/2010, to argue that purchase & sale of Red Sanders wood is not prohibited under Regulation 4 (2) & (3) of the West Bengal Forest Produce Transit Rules 1959 and only movement from one place to another place is subject to transit permit. That the findings of the adjudicating authority are factually wrong that even sale / purchase of Red Sanders wood is also restricted. That appellant immediately took up the matter with the Adjudicating authority after the eizure by writing a letter dt 18/7/08. That the cross examination of relied upon witnesses was sought for, as per Para-iv of prayer of their reply dt 2/3/2009 to the show cause notice, but the Adjudicating authority refused to extend the benefit of the cross examination of the witnesses. That there is no evidence that there was any act or attempt on the port of the appellant to export the seized goods out of India.
3. Sh. A. Kumar AC (AR) appearing on behalf of the Revenue argued that appellant had no authority to store Red Sanders wood at Kolkata as he and his family has a registered premises for such work only at Kanpur. That appellant has exported certain quantities of Red Sanders wood earlier & the quantity seized / stored at Kolkata godown was also meant for exportation illegally. Learned AR thus strongly defended the OIO dt 29/1/2010 passed by the Adjudicating authority.
4. Heard both sides & perused the case records. A quantity of 6150 kgs of Red Sanders wood was seized from a Godown in Kolkata by the Offices of Preventive Commissionerate, West Bengal, Kolkata. Appellant came forward to claim the ownership of the seized goods along with certain documents. Appellant also sought cross examination of certain witness as per their reply dt 2/3/2009 to the show cause notice. One of the arguments taken by the appellant is that all the logs of Red Sanders procured by the appellant bear the Hammer marks of the concerned state forest department from where Red Sanders wood originated. It is observed from the joint inspection done on 3/11/2009 that Red Sanders wood logs seized from the appellant were kept mixed with other Red Sanders wood logs lying with the department but not belonging to the appellant and majority of the logs in the stock were bearing hammer marks of the concerned forest department. Adjudicating authority has not given any findings whether the hammer markings on the seized Red Sanders are the same as contained in the documents / permits furnished by the appellant. Further no cross examination of certain witnesses asked for was extended to the appellant. Adjudicating authority can not brush aside the request for cross examination of the relied upon witnesses / investigating officers. If for any reason the cross examination of witnesses can not be extended then the Adjudicating authority has to intimate the appellant about such rejection by a separate letter as is now a settled legal position. It is also required to be deliberated by the Adjudicating authority whether activities of purchase & sale of Red Sanders wood also need a permit or only movement of the same need a transit permit. It is not coming out of the findings of the Adjudicating authority whether any opinion / report from the West Bengal forest department was obtained to verify the authenticity of the documents furnished and correctness of the procedures followed by the appellant.
5. In view of the above observations & in the interest of justice the matter is required to be remanded to the Adjudicating authority. Appellant should give a specific list of persons / witnesses to be cross examined and adjudicating authority should make efforts to provide the cross examination of such witnesses. Specific findings are required to be given by the Adjudicating authority on the hammer marks of the forest departments on the seized goods & the one found on the transit permit furnished by the appellant and also give a reasoned order on the aspect of attempt to export the seized Red Sanders woods out of India. Appellant should be given an opportunity to justify their claim on the ownership of the seized goods.
6. Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority who will decide the issue in denovo proceedings in the light of observations made hereinabove. Appellant will not ask for the refund of pre-deposit already made till the case is decided by the Adjudicating authority in remand proceedings.
(Operative part of the order was pronounced in the open court.) (H.K.THAKUR) MEMBER (TECHNICAL) TUSHAR KUMAR 6 Appeal No.C/235/2010