Commissioner Of Customs(Prev.), ... vs ) Md.Yusuf Khan

(Arising out of Order-in-Appeal No.06/CUS(A)/GHY/13 dated 19.02.2013 passed by the Commissioner(Appeals) of Customs & Central Excise, Guwahati)

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?

Commissioner of Customs(Prev.), Shillong

Applicant (s)/Appellant (s) Vs.

1) Md.Yusuf Khan 2) Shri Binay Deka 3) Md.Naser Rahman 4) Md.Nazrun Hussain 5) Md.Aftab Uddin 6) Md.Amirul Islam 7) Md.Nazimul Ali 8) Shri M.A. Chowdhury 9) Md.Dilwar Hussain 10) Md.Abdul Asif 11) Md.Inam Uddin

Respondent (s)

Appearance:

Shri S.N.Mitra, AC(AR) for the Revenue

Shri A.C.Tikadar, Consultant & Smt.Sutapa Roy Chowdhury, Adv. for the Respondents

CORAM:

Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing/Decision :- 12.06.2015 Date of Pronouncement :- 24.07.2015

ORDER NO.FO/A/75395-75405/2015

Per Dr. I.P. Lal.

1. These appeals are filed by the Revenue against order-in-appeal dated 19.02.2013 passed by the Commissioner of Customs & Central Excise(Appeals), Guwahati wherein he upheld the order dated 27.07.2012 of the original authority i.e. Additional Commissioner of Customs(Prev.), Shillong and rejected the Revenues appeal.

2.1 The Ld. A.R. appearing for Revenue submitted that the officers of headquarters (Preventive Unit), Shillong proceeded towards the office premises of M/s.Arindam Courier, Solapara Road, Paltan Bazar, Guwahati and recovered two packages altogether containing 18 smaller packets of agarwood chips from outside the office premises of M/s.Arindam Courier. The consignment had arrived from Nagaon, Assam and were booked to M/s.PAFEX (Prakash Air Trade Pvt.Ltd.), S.R. Borah Road, Near Borah Services, Guwahati for their export to Dubai. It was found that the said packages contained 85.12 kgs of agarwood chips. The name of the consignor and the consignee was concealed by the piece of white paper in all the 18 packages and on top of it was written PAFEX, GHY-18x18-3808x18. On removing the white paper from each of the packets, it was found that the consignment was meant for export to UAE.When asked about supporting documents, the manager of M/s.PAFEX, Md.Yusuf Khan produced some documents i.e. transit pass of the forest Department, Nagaland, copy of certificate and the movement challan issued by the forest department etc. These documents were found to be fake. On testing, the goods were found to be Aggarwood Chips derived from wild species i.e. (Aquilaria Malaccensis), whose export is prohibited. Shri Nazrul Hussain, a commission agent, who booked the said consignments and the various claimants i.e. Md.Nazimul Ali, Md.Inam Uddin, Md.Aftab Uddin, Md.Dilwar Hussain, Md.Amirul Islam, Shri M.A. Chowdhury and Md.Abdul Asif, owning the said goods stated that the Agarwood Chips was being sent to Dubai on sample basis.

2.2 It appeared from above that an attempt was made to export a prohibited item out of India illegally without any valid documents, and therefore, the said goods are liable for confiscation and penalty is imposable on the concerned persons. However, the ld.Commissioner(Appeals) ignored these evidences.

3. As per contra Smt.Sutapa Roy Chowdhury, ld.Adv. appearing on behalf of the appellant namely Md.Yusuf Khan, Manager of M/s. PAFEX submitted that the documents handed over to M/s.PAFEX were not accepted and that its further delivery was not entertained and therefore Md.Yusuf Khan has no role to play in the present case. Shri A.C. Tikadar, ld.consultant appearing on behalf of the other appellants submitted that impugned goods are not liable to confiscation as they were not seized within notified area as required under Notification issued under Clause ( C ) of section 7 of the Customs Act. He submits that as such, the provisions of Section 113 (d) and (b) of the Customs Act, 1962. Penalty is also not imposable in view of above. He relied upon this Tribunals order in the case of Debdas Adhikary & Dinabandhu Adhikary vs. CC(Prev.), Kolkata, W.B.  2008 (222) ELT 299(Tri-Kolkata) and in the case of Md.Liakat Ali vs. CC(Prev.), Kolkata, W.B.  2008(222) ELT 295(Tri.-Kolkata). It is the submission that the intention and or preparation are not akin to attempt. He submits that the goods are not notified under Section 123 of the Customs Act and therefore, the burden of proof is not on the Appellants.

5. I have considered the rival contention of the parties.

6. I find that Ld.Commissioner(Appeals) has not addressed the various evidences raised before him and therefore, the order of the Ld. Commissioner (Appeals) is non-speaking. Consequently, I set aside the impugned order and remit back the case to the adjudicating authority for fresh adjudication after recording his findings on each of the issue raised by both parties. It is made clear that an adequate opportunity of hearing should be granted before adjudicating the case afresh. All issues are kept open and both the sides are at liberty to produce evidences in their support.

7. In the result the Revenues appeals are allowed by way of remand.

(Pronounced in the open court on 24.7.2015.)

SD/

(I.P. LAL) MEMBER(TECHNICAL)

sm

5 Appeal No.CA-70811-70821/13