Custom, Excise & Service Tax Tribunal
) Late Gopal Chandra Shil (Legal Heir ... vs Commissioner Of Customs (Prev.), ... on 4 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos. C/71035-71039/2013, C/71139-71145/2013
(Arising out of Order-in-Original No.CCP/NER/7/2013 dated 25.06.2013 passed by the Commissioner of Customs (Prev.), North Eastern Region, Shillong, Meghalaya)
1) Late Gopal Chandra Shil (Legal heir Shri Nirmal Chandra Shil)
2) Shri Nirmal Chandra Shil
3) Shri Shyamal Shil
4) Shri Amal Shil
5) Shri Anjan Shil
6) Shri Ratan Lal Ghosh
7) Shri Badal Saha
8) Shri Anjan Roy
9) Shri Lalit Mohan Ghosh
10) Shri Moti Lal Saha
11) Shri Ranjit Saha
12) Shri Manish Saha
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs (Prev.), Shillong
Respondent (s)
Appearance:
Shri H.K.Pandey & Shri K.P.Dey, Advocate for the Appellant (s) Shri S.N.Mitra, AC(AR) for the Respondent (s) CORAM:
Honble Shri P.K.Choudhary, Member (Judicial) Date of Hearing:- 04.01.2018 Date of Pronouncement:23.02.2018 ORDER NO.FO/75177-75187/2018 Per Shri P.K.Choudhary
1. Briefly stated the facts of the case are that on 15.07.2012, the Officers of the Customs Division, Agartala with the BSF personnel searched the Premises of Gopal Chandra Shil, P.O. Gandhigram, P.S. Agartala, Tripura recovered 475 bottles of Phensedyl Recodex Cough Syrup, Bangladeshi Currency Note Taka 2,39,200.00 and Indian Currency Note Rs. 59,60,000.00. The said Officers recorded the statement of Shri Gopal Chandra Shil and Others. A Show Cause Notice dated 02.01.2013 was issued to Shri Gopal Chandra Shil and Others proposing confiscation of the said goods and to impose penalties. By the impugned Order the Learned Commissioner confiscated the seized goods absolutely namely Cough Syrups, Bangladeshi Taka and Indian Currency Note and also imposed penalties of Rs. 5 Lacs each on Shri Gopal Chandra Shil, Shri Nirmal Shil, Shri Shayamal Shil, Shri Anjan Shil and Shri Amal Shil under section 114 of the Customs Act and further penalty of Rs. 2 Lacs each on Shri Ranjit Saha, Shri Manish Saha, Shri Anjan Roy, Shri Motilal Saha and Shri Badal Saha, Shri Lalit Mohan Ghosh and Shri Ratan Lal Ghosh under Section 114 of the Act, 1962.
Shri Gopal Chandra Shil filed Appeal No. C/71035/2013 and died on 14.08.2016. Shri Nirmal Chandra Shil, son of late Gopal Chandra Shil filed application for substituting his name as legal heir in the appeal of late Gopal Chandra Shil, which was allowed.
2. Heard both the sides and perused the records.
3. I find that the Customs Officers recovered the Cough Syrups, Bangladeshi Taka and Indian Currency Notes from the residents of late Gopal Chandra Shil. The case of the Revenue is that the seized Cough Syrups were attempted to export to Bangladesh illegally.
The Seized Bangladeshi Taka and Indian Currency Notes are the sale proceeds of the smuggled goods and confiscated under Section 121 of the Customs Act, 1962. Late Gopal Chandra Shil in his statement dated 15.01.2012 admitted the recovery of goods/currency notes from his house premises. Subsequently, Shri Nirmal Shil, son of late Gopal Chandrs Shil in his statement dated 18.07.2012 stated that the seized Indian currency notes were received as Advance against the sale of the land. He had shown his ignorance regarding the seized cough syrup and Bangladeshi Taka/currency. It appears from the record that the appellants in their statement stated that they did not have any knowledge about the recovery of Bangladeshi currency and Cough Syrup.
4. The Learned Counsels appearing on behalf of the appellants submitted that the seized goods of Indian currency notes are related to the sale of land. The appellant submitted affidavit of various persons in support of the contention that the Indian currencies are in respect of Advance on sale of land. The Adjudicating authority brushed aside the evidences without any verification. The Learned Counsel submitted that 7% was made as advance payment for purchase of land. It is further stated that seized cough Syrup would not come within the peri pheri of attempt to export under Section 113(b) and (d) of the Act, 1962. He further submitted various Case Laws in respect of confiscation of currency.
5. The Learned A/R reiterated the findings of the Adjudicating authority.
6. I find from the records that export of Phensedyl Recodex Cough Syrup for illegal exportation to Bangladesh through a route other than the specified route under Section 7(1)( c) of the Act, 1962 is prohibited. It has been alleged that the Bangladeshi Currency Note were the proceeds of cough syrup sold in violation of Section 11 of the Act, 1962, Notification No. 31/2008-CUS (NT) dated 25.03.08 and 35/2008-CUS (NT) dated 02.04.2008 read with provisions of the foreign Trade ( Development and Regulation) 1992. It is seen that the appellant had failed to give any satisfactory explanation in respect of storing of huge quantity of Cough Syrups and Bangladeshi Taka. So, there is a force in the findings of the Adjudicating authority in respect of confiscation of Cough Syrups and Bangladeshi Taka.
7. I find from the record that various persons claimed about the seized Indian currency by way of Statement, Affidavits etc. It is stated that this amount is related to the Advance Payment for the sale of the property. Section 121 of the Customs Act, 1962 provides confiscation of sale proceeds of smuggled goods, where any smuggled goods are sold by a person having knowledge or reason to belief that the goods are smuggled goods, the sale proceeds thereby shall be liable to confiscation. It is pertinent to note that it would be on record to establish that the seized Indian currency represents the sale proceeds of smuggled goods. It is noted that the huge amount of Indian currency of about Rs. 59 Lacs which was admittedly recovered from the premises of late Gopal Chandra Shil. He had not given any satisfactory explanation. Hence, it is presumed by the Revenue that the said amount is related to the sale proceeds of smuggled goods. At the time of seizure of Indian currency, the appellant could not give any explanation. I find from the impugned Order, that subsequently, Late Gopal Chandra Shil took a plea that the recovered Indian Currency notes were the advance payment received from the intending purchaser against the sale of the land and submitted copy of Deeds and Agreements. The Adjudicating authority had not examined the documents as these were not produced at the time of recovery. In my considered view, the Adjudicating authority cannot brush aside these evidences for the reason that these were not produced at the time of recovery. In any event, the Adjudicating authority should have examined the documents produced by the appellant in support of the contention that the seized Indian currency were not related to the sale proceeds of smuggled goods. Hence, I am unable to accept the findings of the Adjudicating authority in respect of the confiscation of the Indian currency. In any event, the Adjudicating authority should have verified the records, evidences and if necessary he could have taken the opinion of the Income Tax authorities in respect of huge amount of Indian currency.
8. In view of the above discussion, the confiscation of Cough Syrup and Bangladeshi Taka is upheld. The confiscation of Indian currency is set aside and the matter is remanded to the adjudicating authority to decide afresh after considering the submissions of the appellant and to pass Order in accordance with the law. All the penalties are set aside, the Adjudicating authority would decide the imposition of penalties in the denovo Adjudication.
9. All the appeals are disposed off in the above terms.
(Pronounced in the open court on 23.02.2018) S/d.
(P.K.Choudhary) MEMBER (JUDICIAL) ss 5 Appeal No. C/71035/2013