Custom, Excise & Service Tax Tribunal
Shri Mahabir Prasad Jain vs Commissioner Of Customs (Prev.), ... on 15 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. C/75380/2014
(Arising out of Order-in-Appeal No.31/CUS(A)/GHY/13 dated 26.11.2013 passed by the Commissioner (Appeals) of Customs & Central Excise, Guwahati)
Shri Mahabir Prasad Jain
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs (Prev.), Shillong
Respondent (s)
Appearance:
None for the Appellant (s) Sri S.S.Chattopadhyay, Suptd.(AR) for the Respondent (s) CORAM:
Honble Shri P.K.Choudhary, Member (Judicial) Date of Hearing/Decision:- 15.01.2018 ORDER NO.FO/75241/2018 Per Shri P.K.Choudhary
1. None appears on behalf of the appellant. By letter dated 08.01.2018 the appellant requested to decide the matter on the basis of records.
2. Heard the Learned A/R for the Revenue and perused the records.
3. Briefly stated the facts of the case are that on 12.07.2009 the Officers of Anti Smuggling Unit, Customs Division, Karimganj intercepted a Truck bearing no. AS-17/B -0086 near Assam Taxation Check Gate, Churaibari. On 13.07.2009 the Customs Officers checked the Truck and recovered 25,000 bottles of Phensedyl Cough Linctus (PCL) with 235 Plastic bags containing Rice. The Customs Officers investigated the matter in detail. Shri Aziz Khan on 18.07.2009 claimed the ownership of the Truck. The goods were seized on reasonable belief that PCL were being transported not for any medicinal use within the state of Tripura but for illegal export to Bangladesh in violation of Section 7(1)( c) of the Customs Act, 1962 and in contravention of the Section 11 ibid read with various provisions of Foreign Trade (Development and Regulations) Act, 1992. The Appellant herein is the Proprietor of M/s. Ajmera Brothers of Fancy Bazar, Guwahati who on 27.07.2009 deposed that he is a whole seller of Rice and sold the rice to M/s. Lokenath Traders, Agartala. The Adjudicating authority confiscated the PCL absolutely. It has also confiscated the Rice , vehicle and imposed redemption fine. A penalty of Rs. 2 Lacs was imposed on the appellant herein under Section 114 of the Customs Act amongst others. By the impugned Order, the Commissioner (Appeals) rejected the appeal filed by the appellant.
For the purpose of proper appreciation of the case, the finding of the Adjudicating authority in respect of imposition of penalty on the appellant are reproduced below :
9.6. Shri Mahabir Prasad Jain, Proprietor of M/s. Ajmera Brothers has stated in his reply to the show cause notice that he had supplied 360 bags of rice to the concern man agent of M/s. Loknath Traders. Physical verification reveals only 235 bags of rice investigation also reveals that the consignee of the 18 MT (360 bags) of rice. M/s. Loknath Traders is non existent. These shows the cash memo issued by M/s. Ajmera Brothers is fictitious in terms of quantity and non existent consignee. The challan for 360 bags of rice issued by M/s. Ajmera Brothers was handed over by the Dalal to the driver of the truck. In the light of this, I am of the view that M/s. Ajmera Brothers is very much aware of the fact that not 360 bags of rice as reflected in the cash memo/challan were loaded from their godown, but only 235 bags of rice were loaded. M/s. Ajmera Brothers did not load the remaining 125 bas of rice purposely to accommodate the 250 cartons of Phensedyl Cough Linctus. In my opinion, M/s. Ajmera Brothers knowingly issued fictitious challan/cash memo of rice for concealing the consignment of Phensedyl cough Linctus, concealed under bags of rice and therefore, Shri Mahabir Prasad Jain, Proprietor of M/s. Ajmera Brothers cannot shrug of his responsibility by feigning ignorance about the seized consignment of Phensedyl cough Linctus. He is trying to dissociate himself from the investigation to avoid penal actions as he is aware of the illegal nature of the seized Phensedyl cough Linctus. I therefore find Shri Mahabir Prasad Jain, Proprietor of M/s. Ajmera Brothers involved in concealing, transporting and dealing with the seized goods and thus liable to penalty under Section 114 of the Customs Act 1962.
4. The appellant in his appeal stated that the Driver of the said Truck never stated that the said bags of Rice were loaded in presence of the appellant. In fact, he stated that out of 235 bags of Rice, one Dalal took 125 bags of Rice elsewhere and loaded 250 cartoons of PCL from other Godown not belonging to the appellant. It is also contended that 360 bags of Rice were loaded from this Godown in presence of the representative of the Purchaser and the Driver admitted that the medicines were brought from another Godown on the instruction of the said Dalal.
5. I find that the appellant is silent about the allegation as to why he has issued the challan on consignment of 360 bags of Rice to a non-existent Firm M/s. Lokenath Traders. It has also disputed that the Cash Memo issued by the appellant is fictitious in terms of the quantity and non-existent consignee. Therefore, the submission of the appellant cannot be accepted. Accordingly, I do not find any reason to interfere with the Order of the lower authorities. The appeal filed by the appellant is dismissed.
(Operative part of the order already pronounced in the court) S/d.
(P.K.Choudhary) MEMBER (JUDICIAL)
SS
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Appeal No.C/75380 of 2014