MAHAVIR ABHUSAN BHANDAR Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THE ld. Consultant for the appellant submitted that the appellate order suffers from legal infirmity for no consideration of the issue in the light of the CBEC Circular dated 11 -6 -1990 which required that if the Silver Bar carries foreign mark and enters into India , the question of seizure is required to be considered by an officer not lower in the rank of Assistant Commissioner/Collector of Customs. According to him when there is a Board Circular issued, this is binding on the Authorities. Benefit of circular was required to be given by judicious consideration of the matter as held by Larger Bench of this Tribunal in the case of Shambhu Nath v. Commissioner of Customs, Lucknow reported in 2002 (142) E.L.T. 342 (Tri. -LB) also in the case of Murarilal Agarwal v. Commissioner of Central Excise, Trichy reported in 2005 (179) E.L.T. 110 (Tri. -Chennai). Therefore, he submitted that the ld. Appellate Authority without considering the spirit and policy conveyed through the circular passed the appellate order, for which that suffers from illegality.

(2.) THE ld. JDR appearing for the Revenue submitted that when there was a smuggling and the order was passed on a confessional statement that should not be set aside on the plea of the applicability of the circular. He, further, submitted that the seizure was done finding the questionable silver and the appellant No. 1 having disowned the goods, the appellant 2 and 3 were liable to be charged including appellant No. 1. It was also submission of the Revenue that when the appellant No. 2 advanced his plea that the goods are procured locally but which was not really proved but found to be foreign origin, the appellant should not be made charge free.

(3.) HEARD both sides. Perusal of the records exhibits that the appeal order was passed on 3 -2 -05 and while passing that order both the decisions cited by the Ld. Consultant was very well available before the ld. Authority. But the authority did not take advantage of the decisions and also did not consider the binding nature of the circular to reach to a decision. It is needless to mention that any decision made making departure to the judicial discipline, brushing aside the circular, the decision is impeachable.