Commissioner Of Customs, Patna vs ) Sri Ishan Agarwal

(Arising out of the Order-in-Appeal No.156-158/Pat/Cus/Appeal/11 dated 30/09/2011 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Patna)

For approval and signature of: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER ======================================================

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 Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

Commissioner of Customs, Patna APPELLANT(S) VERSUS 1) Sri Ishan Agarwal 2) M/s. Shyam Enterprises 3) Sri Bishan Lal Goel

RESPONDENT(S)

APPEARANCE

Sri S.K. Naskar, A.C. (A.R.) FOR APPELLANT(S) Sri N.K. Chowdhury, Advocate FOR THE RESPONDENT(S) CORAM: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 21/08/2015

ORDER NO : FO/A/75465-67/2015 Per SHRI H.K. THAKUR

These three appeals have been filed by the Revenue against Order-in-Appeal No. 156-158/PAT/Cus/Appeal/2011 dated-30/09/2011 passed by Commissioner (Appeal), Patna as first appellate authority under which Order-in-Original No. 4-CUS/ADC/DRI/2011 dated-24/01/2011 by the Adjudicating authority was set aside.

2. Shri S.K. Naskar (A.R.) appearing on behalf of the Revenue argued that in para 4 of the Order-in-Appeal dated 24/01/2011 first appellate authority on one hand holds that seized goods were illegally imported into India whereas in the discussion portion, on the last page of Order-in-Appeal, holds that case of the Revenue is based on presumption and assumption. Learned A.R. made the Bench go through the relevant paras of the show cause notice to argue that the brand names of the seized goods are different than the brand names of goods mentioned in the statements of the traders from whom the goods were purchased. It was thus strongly argued that the order passed by the first appellate authority may be set aside and order passed by the Adjudicating authority may be restored.

3. Shri N.K. Chowdhury (Advocate) appearing on behalf of the Respondents argued that all the three respondents supplied the goods under proper invoices which were either imported by them or acquired locally at Siliguri. That minor discrepancies in the description of goods cannot be held as an evidence against the appellants in view of the following case laws when proper invoices were accompanying the goods:-

(i) Manish Kumar Jain Vs. C.C. Chennai reported in 2008 (229) ELT 266 (Tri-Chennai)

(ii) C.C. (Preventive) Vs. Mahendra Singh Purohit reported in 2008(225) ELT 426 (Bombay)

(iii) C.C. (P), Mumbai Vs. Aakash Enterprises reported in 2006 (205) ELT 23 (Bombay)

4. Heard both sides and perused the case records. It has been observed by the first appellate authority in the opening para on page 20 of the appeal memorandum that ownership of the seized/confiscated goods is uncontested. Shri Dipak Chakraborty of Siliguri in his statement dated 26/06/2009 stated that he has booked 23 bundles of goods from Jalpaiguri to New Delhi under PW Bill No. D 3988885 on 4/06/2009. Respondents have produced trading invoices of the seized/confiscated goods which are not brand name wise. Due to non matching of brandwise description in the trading invoices and the bills of entry produced/statements recorded it is the case of the Revenue that seized goods are of smuggled nature. In this regard first appellate authority has correctly held that documentary evidences cannot override the oral statements. In this regard it is observed that CESTAT in the case of Manish Kumar Jain Vs. C.C., Chennai (supra) has also held it to be so. So far as discrepancies in matching the details of the seized goods with the documents produced by the Respondents is concerned, following has been held by Bombay High Court in para 2 of the case law C.C. (P) Vs. Mahendra Singh Purohit (supra) 2. The reason for setting aside the confiscation is that the goods in question are not notified goods and the revenue failed to discharge the burden that the said goods are smuggled illegally into the country. The Tribunal has further held that even if the duty paying documents produced by the respondent did not tally with the description of the goods, still the onus was on the revenue to discharge the burden by producing positive evidence. The Tribunal has held that in the absence of such evidence, the confiscation order cannot be sustained.

Similarly in the case of C.C. (P) Mumbai Vs. Askash Enterprises (supra) following observations were made by Bombay High Court regarding burden of proof & smuggled nature of goods:-

6. It is pertinent to note that initially the case of the Revenue was that the seized goods were not the goods imported vide Bills of entry submitted by the respondent. However, on re-verification , the only discrepancies that were found were regarding the wrong description or incorrect country of origin. In the facts and circumstances of the case, therefore, the burden lay on the Department to establish that the seized goods were smuggled goods which they miserably failed to do. As to whether the party upon whom the burden lies to prove a fact, has discharged the burden or not is always a question of fact.

5. In the present proceedings, Revenue has only raised suspicion on the origin of seized goods but has not discharged the burden as to how seized goods were of smuggled nature when Respondents have produced copies of trading invoices. In view of the above observations and the settled proposition law this bench does not find any reason to interfere with the order passed by the first appellate authority. Accordingly, appeals filed by the Revenue are rejected.

(Operative part of the order already pronounced in the Court)

Sd/-

(H.K. THAKUR) Technical Member

k.b/- Customs Appeal Nos. C/388-390/2011

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