Custom, Excise & Service Tax Tribunal
Shri Gopal Saha vs Commissioner Of Customs, Patna on 6 June, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos.Cus.Ap.41-42/11
(Arising out of Order-in-Appeal No.147-148/Pat/Cus/Appeal/10 dated 08.10.2010 passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. I.P. LAL, 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?
Shri Gopal Saha
Shri Gopinath Chaurasia
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs, Patna
Respondent (s)
Appearance:
Shri K.P.Dey, Advocate for the Appellant (s) Shri S.Chakraborty, A.C.(A.R.) for the Revenue (s) CORAM:
Honble Dr. I.P. Lal, Member(Technical) Date of Hearing/Decision :- 06.06.2014 Date of Pronouncement :- 01.08.2014 ORDER NO.FO/A/75436-37/14 Per Dr. I.P. Lal.
1. These Appeals are filed against the order of the Ld.Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.
2. Briefly stated the facts of the case are that an information was received by the officers of Directorate of Revenue Intelligence, Regional Unit, Patna that a consignment consisting 30 bags of betel nuts of third country origin has been smuggled into India from Nepal through off-routes and the same has been loaded in rear compartment of Up Brahmaputra Mail. Accordingly the officers on 25.09.2005 searched the said compartment in presence of the railway officers and recovered 30 bags of betel nuts (splitted) of third country origin packed in double gunny bags. On the trade enquiry the impugned goods appeared to be of foreign origin and therefore the same were seized under the reasonable belief that they are liable for confiscation. A show cause notice was therefore issued proposing for confiscation of the said goods and imposition of penalty on the Appellants namely Shri Gopal Saha and Shri Gopinath Chaurasia. The show cause notice was adjudicated by the Additional Commissioner of Customs, patna ordering absolute confiscation of seized betel nuts valued at Rs.2,30,000/- and imposing penalty of Rs.10,000/- and Rs.15,000/- on Shri Gopal Saha (Consignor) and Shri Gopinath Chaurasia (Consignee). On Appeal, the Ld.Commissioner(Appeals) remanded the case to the lower authority for fresh adjudication after examining the applicability of the test report of the seized goods and the reasons for goods detained on 25.09.2005, but seized on 26.10.2005. The case was therefore taken for de novo adjudication by the Joint Commissioner holding the same decision of his predecessor i.e. Additional Commissioner of Customs. Being aggrieved the Appellants filed Appeal to the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) upheld the de novo adjudication order. Being aggrieved these Appeals are filed before this Tribunal.
3. Shri K.P.Dey, Ld.Advocate appearing for the Appellants has submitted that there are apparent contradictions in recording the facts of the case. While as, as per show cause notice the gunny bags in which the betel nuts were contained were having the markings like produce of Indonesia and in transit to Nepal etc. but the Panchnama drawn while effecting the seizure does not mention this fact. It is further submitted that Shri Gopinath Chaurasia, Prop. of M/s.Arti Enterprises, Varanasi, Consignee of the said betel nuts appeared before the officers of Customs and produced the photocopies of the P.W. Bill No.572133 dated 23.09.2005 and Form M and Form K dated 23.09.2005 evidencing that the betel nuts were obtained from Darang District Regulated Market Committee and that the payment was made to the consignor Shri Gopal Saha by the Bank Draft No.911460 DATED 14.01.2006 for Rs.90,000/-. It is submitted that Shri Chourasia is not habitual in smuggling of third country origin betel nuts inasmuch as the show cause notice proceedings initiated against them were dropped by the decision of the CESTAT Principal Bench New Delhi in the case of Arti Enterprises vs. CC, Allahabad reported in 2010 (07) LCX 0082. Ld.Advocate submitted that the betel nuts were not tested in this case and copy of the trade opinion was not made available to them. He further submitted that the goods are not notified under Section 123 of the Customs Act and therefore the onus lies on the Customs officer to prove that the same were smuggled goods. The Ld.Advocate submitted that merely the trade opinion is not a conclusive proof suggesting the foreign origin of the goods. In this regard he referred to the judgement fo the Honble High Court of Patna in the case of CC, Patna vs. Dwarika Prasad Agarwal 2012 (275) ELT 183 (Pat.).
4. As per contra the Ld.A.R. for Revenue submitted that the betel nuts of foreign origin and Indian origin differ in shape and size. While as betel nuts of third country origin are bigger in shape and size, the betel nuts of Indian origin are conical and smaller. He submitted that on earlier occasions when the samples were sent for testing, a chemical report was furnished by the testing laboratory that it is not possible to arrive at the conclusion regarding the origin of the goods on the basis of test report and therefore there was no need for chemical testing of the impugned goods. He submitted that in spite of summons issued to Shri Gopal Saha, he never appeared before the investigating officers. According to Panchnama the gunny bags containing the betel nuts were bearing foreign mark. No valid document of purchase of the impugned goods in India could be produced and therefore it appeared that the seized betel nuts were of foreign origin.
5. After hearing both sides I find that the goods were detained in this case on 25.09.2005, but Shri Gopinath Chaurasia, Prop. of M/s.Arti Enterprises and the consignee of the said goods submitted photocopy of the few bills after a period of about four months i.e. on 23.09.2005. He submitted that the payment in this case was made on 14.01.2006 i.e. much after the seizure. No purchase documents has also been produced in this case and therefore it is clear that the subsequent bills and the proof of payment furnished were only the after-thought. He further stated that no purchase documents could be produced indicating that the goods were purchased in India. As regards Panchnama it mentions that some of the gunny packings indicated third country origin of the impugned betel nuts. Ld.Commissioner(Appeals) has observed that the form M and K dated 23.09.2005 and way bill dated 23.09.2005 did not reveal the complete address of consignor as well as that of consignee. Further the trade opinion revealed the said goods to be foreign origin and the payment in respect of the said goods to the consignor Shri Gopal Saha was made much after the case was booked, etc.. As regards the order of the Honble High Court cited in the case of Dwarika Prasad Agarwal cited (supra), the Honble Court under para 8 observed that trade opinion may not be an expert opinion, but opinion based on long experience in the trade considering significant difference in the items of Indian origin and foreign origin may be of persuasive value and may not be thrown out only on the ground that trade opinion is not an expert opinion. If there are significant differences in shape, size, test etc. of betel nuts of Indian origin than the betel nuts of foreign origin the person in trade may form an opinion that it is of foreign origin which in the facts of the case may be accepted. It is evident from trade opinion that the recovered betel nuts on the basis of their shape, size and appearance appeared to be of foreign origin. In view of these facts I am of the opinion that the impugned Appeals have no merit and therefore the same are rejected.
(Pronounced in the open court on 01.08.2014.) SD/ (I.P. LAL) MEMBER(TECHNICAL) sm 6 Appeal No.Cus.Ap.41-42/11