Custom, Excise & Service Tax Tribunal
Ekram Sk vs Commr. Of Customs (Prev.), W.B on 4 September, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
SPs.-641,642 & 643/09
& Cus. Appeal Nos.328,330A & 327/09
Arising out of Order-in-Appeal Nos.Prev./Cus-37/2009 dt. 17.4.2009, Prev./Cus-36/2009 dt. 17.4.2009 & Prev./Cus-38/2009 dt. 17.4.2009, all passed by Commr. of Customs (Appeals), Kolkata.
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
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 authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Ekram Sk.
Majibur Rahaman
Majibur Rahaman
...APPELLANT(S)
VERSUS
Commr. of Customs (Prev.), W.B.
RESPONDENT (S)
APPEARANCE Shri K. P. Dey, Advocate for the Appellant (s) Shri M. B. Bol, JDR for the Department CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT Date of hearing & decision : 04.09.2009 ORDER NO......................................................................................... Per Shri S. S. Kang :
Heard both sides. The applicants filed these stay petitions for waiver of predeposit of penalties. As the livestock was totally confiscated by the impugned order, therefore, predeposit of penalties is waived. Stay petitions allowed.
2. A common issue is involved in these cases. Therefore, all the appeals are being taken up together. The appellants filed these appeals against the impugned orders whereby "livestock i.e. cattles" were confiscated and penalties were imposed on the appellants on the ground that the livestock is being smuggled to Bangladesh through unauthorized route.
3. The case of the Revenue is that on different dates, the BSF Personnel seized the livestock in question and handed over to the Customs Officials as the same were seized near the Bangladesh border. The appellants claimed the ownership of the livestock and also submitted that the same were seized by the BSF Personnel from their cowsheds and in this regard, a complaint also lodged to the police.
4. The contention of the appellants is that as per the case of the Revenue, nobody was accompanied with the livestock at the time of seizure, which is not possible. If the livestock is to be smuggled to Bangladesh, the livestock must be accompanied by some persons. It is also submitted that the complaint with the police is pending to the effect that the livestock in question was seized from their cowsheds. It is also submitted that in one case as mentioned in the show-cause notice, the livestock was seized 6 kms away from the Bangladesh border and the other case 4 kms away from the Bangladesh border. The contention of the Revenue is that the livestock was seized near the border as the same is to be smuggled to Bangladesh. It is also submitted that the appellants claimed the ownership subsequently and also lodged a complaint with the police late. Therefore, it is clearly an afterthought.
5. In reply, the contention of the appellants is that within 14 days, the claim was filed with the Customs Authorities as the appellants were not aware where the livestock was handed over to the Customs by the BSF Personnel and also lodged a complaint with the police. The appellants also produced the receipts regarding purchase of the livestock in question. The appellants also relied upon the Tribunal's decision in the case of Md. Bellal Hossain Vs. Commr. of Customs (Prev.), W.B.-2002 (146) ELT 192 (Tri.-Kolkata) whereby it has been held that late filing of complaint or ownership claim will not affect the case of the appellants.
6. In these cases, the livestock was seized by the BSF Personnel. There is no evidence on record to show that anybody was accompanied the livestock. The case of the appellants is that the livestock was seized by the BSF Personnel from the cowsheds regarding which a complaint was lodged with the police. The appellants also filed proof of purchase of livestock by producing receipts. No investigation was conducted in this regard. Further, I find the livestock was seized from 6 kms and 4 kms away from the Indo Bangladesh border as mentioned in the show-cause notices. In the case relied upon by the appellants, it has been held that late filing of claim of ownership or complaint will not affect the case of the assessee. In the circumstances, as there is no evidence on record to show that the livestock in question which was seized from 6 kms and 4 kms away from the Indo Bangladesh border, was for smuggling to Bangladesh. In the circumstances, I find merit in the contention of the appellants and the impugned orders are set aside and all the appeals are allowed. Stay petitions also stand disposed off.
(Dictated and pronounced in the open Court) Sd/ (S. S. KANG) VICE PRESIDENT mm 4 Cus.Appeal Nos.328,330A & 327/09