M/S. Shri Anil Kumar vs Commissioner Of Central Excise & ...

(Arising out of the order in Appeal 227/Pat/Cus./Appeal/2013 dated 18.06.2013 passed by the Commissioner of Central Excise & Service Tax Patna.

FOR APPROVAL AND SIGNATURES 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?

M/s. Shri Anil Kumar APPLICANT(S) VERSUS Commissioner of Central Excise & Service Tax, Patna ...RESPONDENT (S)

APPEARANCE:

SHRI N.K. Chowdhary, (Advocate) FOR THE APPELLANT SHRI S.K. Naskar, A.C.(AR) for the Respondent

CORAM:

SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

Date of Hearing: 16.10.2015 Date of Decision: 16.10.2015

ORDER No. FO/A/75613/15

Per Shri H.K.Thakur

This appeal has been filed by the appellant against OIA No. 227/Pal/CUS./Appeal/ 2013 dt 18/6/2013 passed by Commissioner (Appeals Patna under which first appellate authority has upheld the order of confiscation made by the Adjudicating Authority.

2 Sh. N.K. Choudhari (Advocate) appearing on behalf of the appellant argued that seizure of 1646 pcs of mobile phones of foregn origin belonging to the appellant were seized an 12/8/2012 as unclaimed. That by the time appellant could came to know about the seizure of his goods and lodge claim a show cause notice dt 21/8/2012 was issued by the department before the appellant went to claim the goods vide his petition dt 27/8/2012. That a bill regarding purchase of mobile phones from Delhi was furnished during the adjudication & appeal proceedings but no investigations were done by the department to verify the claim of the appellant. It was his case that mobile phones are not notified goods under Sec 123 of the Customs Act 1962 and seizure & confiscation was not justified as Revenue has failed to discharge the onus that mobile phones were of smuggled nature. Learned Advocate relied upon the following case laws:-

(i) Siddartha Agarwal- 2008 (228) ELT 560 (Tri-Kol)

(ii) Nand Kishore Dabra-2005 (191) ELT 624 (Tri-Del)

(iii) Lalchand Wadhwani- 2006 (200) ELT 281 (Tri-Del,)

(iv) Pawan Kumar Sharma-2006 (197) ELT 263 (Tri-Del)

(v) Tokyo Electronics-2007 (212) ELT 86 (Tri-Del)

(vi) Sundarlal-2004 (165) ELT 250 (Tri-Kol.) 3 Sh. N.K. Naskar AC (AR) appearing on behalf of the Revenue argued that import of mobile phones, is prohibited as per Notf. No. 14/2009-2014 dt 14/10/2009 issued by DGFT, Ministry of Commerce & Industry, New Delhi. Learned AR thus strongly defended the order passed by the first appellate authority on the grounds that he has elaborately discussed the prohibitions. That appellant did not come forward to claim the goods for more than one week and is not the rightful owner.

4 Heard both sides & perused the case records. The issue involved in these proceedings is whether mobile phones are rightly confiscated as smuggled goods and whether appellant is the rightful owner of the goods. It is observed from the case records that seizure of the mobile phones was made an 12/8/2012 as unclaimed and the show cause notice was issued an 21/8/2012 in a haste within 10 days of seizure of goods. Appellant made a claim with respect to seized goods on 27/08/2012 alongwith copies of the purchase bills. No investigations at all were conducted by the department to check the authenticity of the documents produced by the appellant. There was also no other claimant of present seized mobile phones of foreign origin and mobile phones are not notified under Sec 123 of the Customs Act 1962 where onus shifts to the owner / importer of the goods. Appellant has never claimed to be the original importer of the mobile phones. The requirement to meet with the prohibitions imposed by the DGFT notification No. 14/2009-14 dt 14/10/2009 can be only be questioned from the importer. No investigation was done from the seller of the mobile phones in Delhi to establish that mobile phones were of smuggled nature. Once appellant has produced the purchase bills with respect to the seized goods then it can not be said that the seized goods were of smuggled nature when no investigation was done at sellers end. In the absence of any other claimant of goods the present appellant has to be considered as the rightful owner. Appellant can not be questioned with respect to the restrictions imposed by DGFT when the same were also not the subject matter of the show cause notice.

4.1 In the case of Siddartha Agarwal Vs CC Patna (Supra) this bench held as follows in Para- 1.2

1.2 We find that the Appellants have produced necessary documents to show that they have purchased the impugned mobile phones from a dealer and the dealer has also confirmed the fact of sale and has produced the necessary documents such as bill of entry, invoice, packing list etc. it has been observed by the original Authority that the import documents do not contain the X.E.I number of the impugned mobile phones. If the Customs Authorities are not insisting on recording of the relevant MEI numbers on the import documents, the buyer who has subsequently purchased the mobile phones from the importer / dealer cannot be held responsible for the same. On the face of the sale documents and confirmation of sale by the importer / dealer, the benefit of doubt has to be given to the Appellants in such a case as there is no other evidence that the impugned goods are smuggled.

5. In view of the above observations & settled proposition of law appeal filed by the appellant is allowed with consequential relief, if any.

(Operative part of the order was pronounced in the court.)

(H.K. THAKUR) TECHNICAL MEMBER

Tushar kumar

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