Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Customs (Prev.) vs Monoranjan Banik on 25 November, 2003
Equivalent citations: 2004(165)ELT237(TRI-KOLKATA)
ORDER Smt. Archana Wadhwa, Member (J)
1. After rejecting the Stay Petitions filed by the Revenue, I take up the appeals itself, with the consent of both sides.
2. The Additional Commissioner of Customs (adjudicating as authority) released the Metal Scrap as also the vehicle, proposed to be confiscated on the following grounds :-
"I find that there is a force in the arguments of the noticees inasmuch as that -
(1) The goods are not notified under Section 123 therefore the burden of proof that goods are smuggled is on the department.
(2) The markings shown in the show cause notice are not by way of any examination done before witness or joint examination.
(3) It is not known whether those markings are on all the goods or some of the goods.
(4) Mere foreign paper wrapping on the Scraps do not indicate as a foreign goods. Scrap is not a manufactured goods.
(5) There is no break-up of the goods related to markings. (6) Such markings are not mentioned in the show cause notice."
3. Being aggrieved with the above Order of the Additional Commissioner, the Revenue filed a Review Petition before the Commissioner (Appeals), which was disposed of by the appellate authority by observing as under :-
"The Review Application has not put forth any irrefutable evidences which could establish the smuggled character of the impugned goods. In the absence of any conclusive proof regarding the foreign origin of goods, provisions of Section 111 were not legally invocable. In other words, confiscation of the goods and imposition of penalty are not legally sustainable in the facts and circumstances of the case. Further, confiscation of vehicle under Section 115 of the Act is not warranted under the provisions of law.
4. In view of the above, I find that there is no merit in the Review Application filed by the Deptt. and accordingly, the order impugned in appeal is confirmed. The Review Application is accordingly, rejected."
4. Being not satisfied with the Order passed by the Commissioner (Appeals), five further appeals have been preferred before the Tribunal.
5. I have heard Shri A.K. Mondal, learned SDR for the Revenue and Shri M.N. Basu, learned Advocate and Shri K. Chatterjee, learned Consultant for the appellants (Sl. Nos. 1 & 6, 2 & 7, 3 & 8, 4 & 9); and none for the Sl. Nos. 5 & 10.
6. The Revenue in their grounds of appeals have contended that there was an admission by the driver that the goods were of foreign origin and the same were loaded as Bhangri scrap. Inasmuch as there is no zinc or copper manufacturing unit in Siliguri or in the nearby area, the seized goods should be of smuggled character only. They have also contended that the fact that the truck was coming from Siliguri, which is a vulnerable area from the smuggled point of view, shows that the goods were smuggled.
7. However, I do not find any force in the above contentions of the learned SDR. The mere fact that the goods were admitted to be of foreign origin, does not, ipso facto, lead to the inevitable conclusion that the same are also of smuggled character. The goods being non-notified, it is for the Revenue to prove by production of affirmative and tangible evidence, that the goods in question have entered India illegally. The confiscation of the same cannot be ordered on the basis of assumption and presumption and on the basis of that, the area is a smuggling zone. In these circumstances, I am of the view that the lower authorities have applied the law correctly. There is no merit in the Revenue's appeals. Accordingly, all the appeals are rejected.