COMMISSIONER OF CUSTOMS (PREV.), PATNA Vs. SHRAWAN SAH

JUDGEMENT

(1.) THESE appeals are filed by the Revenue against the Order -in -Appeal Nos. 193 -194/Pat/Cus/Appeal/2011, dated 8 -12 -2011.

(2.) BRIEFLY stated facts of the case are that on 22 -2 -2007, the Customs Officers intercepted a person namely Shri Shrawan Sah at 19.15 hours near border check post with 15 silver bars weighing 10.235 Kgs. valued at 2,04,700.00, while attempting to illegally export the same to Nepal. His statement was recorded under Sections 107 and 108 of the Customs Act, 1962, wherein he had confessed that the goods belonged to one Shri Laxmi Prasad of Motihari. Consequently, the impugned goods were seized under Section 110 of the Customs Act, 1962 and show cause notice was issued to the respondents. On adjudication, the impugned goods were confiscated under Section 113 of the Customs Act, 1962 and penalty of Rs. 1,25,000.00 was imposed on Shri Laxmi Prasad and Rs. 15,000.00 on Shrawan Sah under Section 114 of the Customs Act, 1962. Aggrieved by the said Order, both the respondents filed appeals before the Commissioner (Appeals), Patna, who had upheld the Order of the lower adjudicating authority. Aggrieved, the respondents filed appeals before this Tribunal, and after hearing both sides, this Tribunal had remanded the matter to the Adjudicating Authority, vide its Order Nos. A -487 -488/KOL/2009, dated 13 -8 -2009 [2009 (248) E.L.T. 489 (Tri. - Kol.)]. Consequently, the Additional Commissioner of Customs, Patna has adjudicated the case by confiscating the goods and imposing respective penalties on the Respondents. Aggrieved by the said Order of the Additional Commissioner dated 20 -8 -2008, the Respondents filed appeals before the Commissioner (Appeals). Learned Commissioner (Appeals) allowed their appeals by setting aside the impugned Order -in -Original dated 20 -8 -2008. Hence, Revenue is in appeal.

(3.) LEARNED AR appearing for the Revenue has submitted that this is the second round of litigation. In the first round of litigation, the Tribunal after considering the facts and circumstances of the case had remanded it to the adjudicating authority for deciding the issue afresh, after allowing the respondents cross -examination of the panch -witnesses and an opportunity of personal hearing to them. He has submitted that in spite of best efforts by the Department, the investigating officers could not locate the panch -witnesses and accordingly, the panch -witnesses could not be produced before the adjudicating authority in the de novo adjudication proceedings for cross -examination. However, the adjudicating authority on the basis of other evidences, confirmed the charges against the respondents. He has submitted that the learned Commissioner (Appeals) erred in not taking into consideration the other circumstantial evidences into consideration, while allowing the appeals filed by the Respondents before him. The contention of the learned AR is that merely due to non -production of panch -witnesses, it cannot vitiate the entire proceeding. However, he has fairly conceded that in the first round of litigation, it was the specific direction of this Tribunal to allow cross -examination of the panch -witnesses and the said Order of the Tribunal had not been challenged before the higher authorities nor any time, the Department approached this Tribunal expressing its inability to produce the panch -witnesses for cross -examination.