Customs, Excise and Gold Tribunal - Delhi
Ganesh Shreshtha vs Commissioner Of Customs on 14 August, 2003
Equivalent citations: 2003(161)ELT1025(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This order will dispose of all the captioned three appeals filed by the appellants against the orders-in-original, dated 30-10-2001 passed by the Commissioner vide which he had ordered the confiscation of the goods i.e. Ginger and imposed penalties on the appellants, as detailed therein.
2. The learned Counsel has contended that there is no evidence on the record to prove that the goods which were validly imported from Nepal after clearance by the Nepal Customs Authorities as well as by the Indian Customs Authorities were of Chinese origin. The trade opinion relied upon by the Revenue to hold that the goods were of Chinese origin was neither admissible nor sufficient to bring home the allegations of the smuggling of the Chinese origin goods (Ginger) by the appellants. The learned Counsel has also referred to the certificate issued by the Nepal Customs Authorities certifying the origin of the goods as 'Nepal'. Therefore, neither the goods could be confiscated nor any penalty could be imposed on any of the appellants.
3. On the other hand, the learned JDR, has reiterated the correctness of the impugned order by contending that the certificate of origin of the seized goods, issued by the Nepal Government, was not produced by the appellants at the time of seizure of the goods, and that the drivers of the trucks also did not dispute in their statements that the seized goods i.e. Ginger, was of Chinese Origin.
4. I have heard both sides and gone through the record. The perusal of the record shows that on 10-7-2000 two trucks containing Ginger were seized in the area of Gorakhpur, U.P., while the third truck was seized in the area of Lucknow, U.P. All the three trucks were loaded with Ginger. It is also evident that the goods of these trucks were cleared by the Nepal Customs Authorities as well as by the Indian Customs Authorities after scrutinizing all the documents produced by the appellants. At that time, ginger of Nepali origin was exempt from payment of duty under Notification No. 37/96, dated 23-7-1996. Therefore, no duty was charged from the appellants.
5. The interception of the goods was made on the belief that the same were of Chinese origin and trade opinion from M/s. Anil Agency Kirana Dryfruit Merchant, Gorakhpur and Rapti Kapas Udyog, Charanta, was obtained in that regard. But this evidence, in my view, could neither be relied upon against the appellants for having not supplied them the copies of the same, nor was sufficient to establish the Chinese origin of the goods. The goods, as observed above, were firstly cleared by the Nepal Customs Authorities after satisfying themselves to be of Nepal origin. The appellants have even produced a certificate in that regard issued by the Nepal Government. Thereafter, the goods were also cleared by the Indian Customs Authorities without any objection after duly satisfying about the origin of the same. It is difficult to accept that thereafter while the goods were being taken to the consignees place, the origin was changed. The trade opinion given by the above referred two firms, was not an expert opinion regarding the origin of the goods. It was only an opinion given by the ordinary persons. There is nothing on the record to suggest if any inquiry was made from Nepal Government to ascertain that the goods were of Chinese origin and not Nepal. The correctness of the certificate issued by the Nepal Government regarding the origin of the goods had not been doubted or questioned. All the relevant documents regarding the legal import of the goods contained the description of the goods as Ginger of Nepal. No evidence has been brought on the record to suggest that the seized Ginger was not available in Nepal. For want of any corroborative evidence, no inference could be drawn that the goods imported were of Chinese origin. The alleged statements of the drivers of the trucks regarding the Chinese origin of the goods also did not carry any legal weightage, as the drivers could not possibly disclose the origin of the goods. They could not be termed as experts or the persons having personal knowledge about the origin of the goods,
6. In view of the discussion made above and from the evidence brought on record, it does not stand proved that the goods imported were of Chinese origin. Therefore, neither the confiscation of the goods nor imposition of penalty on the appellants could be legally ordered. The impugned orders-in-original in all the three captioned appeals are set aside in toto against the present appellants only. The appeals of the appellants are allowed accordingly with consequential relief, if any, permissible under the law.