2004 (96) ECC 550 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

Eastern Zonal Bench -- Kolkata

Shri M.P. Bohra, Member (J)

Shri Balai Kundu

Versus

Commissioner of Customs (P) West Bengal

Appeal No. ESM-197/2003

[Arising out of Order-in-Appeal No. PREV/CUS/187/2003 dated 16.7.2003 passed by the Commissioner of Customs (Appeals), West Bengal, Kolkata]

Order No. A-429/Kol/2004 dated 1.7.2004, Certified on 15.7.2004

Confiscation

Goods seized near border of Nepal -- Attempt to illegal export -- The documents filed by the appellant reveal that the goods were waiting for examination and final approval of the proper officer for shipment to Nepal whereas the goods were already seized by the Customs officer on that day. It clearly reveals that the appellant tried to fabricate and manipulate the documents for showing his ownership over the seized goods. Had there been only ownership documents with the appellant that could have been produced before the Customs Authority on the very day of seizure. It took 9 (nine) days to produce such document and on an inspection by the competent authority it revealed that they were fabricated -- Appellant was holding an Export License and was engaged in illegal activities of export -- Impugned order is justified.

Appeal dismissed

PRESENT :

Shri K.P. Dey, Adv. for the appellant.

Shri J.R. Madhium, JDR for the respondent.

Per : M.P.Bohra

Heard Shri K.P. Dey, Advocate for the Appellant and Shri J.R. Madhium, JDR for the Revenue. This appeal has been filed against the order of Commissioner of Customs, Central Excise (Appeals), Kolkata dated 16.7.2003. In brief, facts of the case are that on 23.5.2001 at about 14.30 hours the Customs Officers of Panitanki P.U. intercepted 3 (three) rickshaws loaded with indigenous goods of Indian origin at 100 mtrs. Ahead of Panitanki Land Customs Station while attempt was made to export those goods to Nepal. No document could be produced by the rickshaw puller. A detailed examination was made on the packages were contained old and used machinery parts, clothings and fertilizers. The goods were seized under Section 110 of the Customs Act. On the reasonable belief that those were attempted to be exported to Nepal unauthorized through the authorized route. One Shri Balai Kundu of Babupara, Naxalbari, District-Darjeeling appeared before the Customs Authority of Panitanki P.U. and stated in writing that he instructed the van pullers to load and transport the goods under seizure to Nepal and considering loss or damage of the transport/export documents he did not hand over the documents to the illiterate rickshaw van pullers. The fertilizers and medicines belong to one Shri Tapas Sengupta of Sukanta Nagar, Siliguri, a representative of M/s. Karnataka Agro-Chemicals Pvt. Ltd. M/s. Multiplex who requested him to export those goods to Nepal and rest goods belong to him. He further stated that he was holding an Export License and is liable for his own goods and not the other seized goods. He further contended that the goods pertain to M/s. Karnataka Chemicals Pvt. Ltd. and M/s. Multiplex were stored in his godown and he simply allowed loading of the impugned goods on the van rickshaws at the request of Tapas Sengupta. The Joint Commissioner of Customs (Preventive) West Bengal, Kolkata confiscated the goods and imposed a penalty of Rs. 6,000 (Six Thousand Only) on Balai Kundu and 6,000 (Six Thousand Only) on Tapas Sen Gupta. They preferred an appeal before the Commissioner of Customs, Central Excise (Appeals) Kolkata but dismissed the appeal on 16.7.2003. Hence this appeal has been filed.

Heard Shri K.P. Dey, Advocate and Shri J.R. Madhium, JDR for the Respondent. Learned Advocate for the appellant submits that the goods belong to the appellant. There was no rebuttal against it and goods ought to have been returned to the appellant. Mere seizure of the goods near border will not make them liable to be confiscated. He submits that the appellant has established his ownership over the goods and the same may be returned to the appellant. He submits that the appeal may be allowed. In reply, the learned JDR has supported the order of the Commissioner (Appeals) and Order-in-Original. He submits that the appeal may be dismissed.

The main contention of the appellant is that they have filed the relvant documents before the Customs Authority but the documents were not properly evaluated. I have gone through the Order-in-Original passed by the Joint Commissioner of Customs, Kolkata and the Order-in-Appeal passed by the Commissioner (Appeals), Kolkata. From perusal of the order it is clear that the documents filed by the appellant were fabricated and manipulated. The documents filed by the appellant reveal that the goods were waiting for examination and final approval of the proper officer for shipment to Nepal whereas the goods were already seized by the Customs officer on that day. It clearly reveals that the appellant tried to fabricate and manipulate the documents for showing his ownership over the seized goods. Had there been only ownership documents with the appellant that could have been produced before the Customs Authority on the very day of seizure. It took 9 (nine) days to produce such document and on an inspection by the competent authority it revealed that they were fabricated. From perusal of above, it is clear that the appellant was holding an Export License and was engaged in illegal activities of export. The order passed by the Commissioner is elaborate and has discussed all the points raised by appellant. I do not find any force in the appeal filed by the appellant. Consequently I dismiss the appeal.

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