JATA SHANKAR PRASAD Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THE ld. Counsel appearing for the appellant submitted that the goods in question i.e. 198 bags of Choker (chaff) of Nepalese origin which was seized was not in the course of import to India but only when the duly imported goods were in India were seized. The seizure was a colourable exercise to make a case against the appellant holding that the goods were not covered by proper document. The ld. Counsel, further, submitted that he discharged burden of proof although that was not required or compellable in the eyes of law to do so. Also driver was not brought to record for any interrogation nor the Department found any evidence of illegal import. In support of his contention, he cited the decisions in Commr. of Customs (Preventive), Mumbai v. Shri Ganesh Enterprises reported in 2006 (199) E.L.T. 208 (Bom.), Naveed Ahmed Khan v. Commr. of Customs, Bangalore reported in 2005 (182) E.L.T. 494 (Tri. -Bang.) and Shri Ganesh Enterprise v. Commr. of Customs (P), Mumbai reported in 2007 (210) E.L.T. 234 (Tri. -Mumbai). Therefore, the appellate order upholding the order of adjudication is liable to be set aside.

(2.) THE ld. JDR submitted that there was a full proof of violation of law revealed by enquiry against the appellant along with another appellant Shri Bhagwan Prasad who was before this Tribunal in Customs Appeal No. CSM -131/05 and they both were involved in the questionable act. Appeal of the said appellant was dismissed upholding the first appellate order in terms of Tribunals order dated 16 -4 -2007. Further, said appellant choose convenient mode to assist the present appellant to seek redressal independently. Therefore, the first appeal order may be upheld.

(3.) HEARD both sides and perused records. Record reveals that Appellant along with Bhagwan Prasad lodged claim for goods as well as vehicle before the Authorities below. Revenue bringing out the fact that the driver was absconded when the truck was intercepted , discharged onus of proof of illegal import leaving the burden to the appellant for proof of bona fide beyond reasonable doubt. Although Bill of Entry bearing No. 19765 dated 26 -12 -2003 was believed by Authorities, it was not explained as to the place where the goods were kept after import. Also it was not correlated with evidence that the goods imported by Bill of Entry of 26 -12 -2003 were the same goods found in the truck on 10 -1 -2004 by Authorities. Bhagwan Das who was involved in the matter as pleaded by Revenue aforesaid, having faced the consequence of dismissal of his Appeal, that lend support to Revenues case. It was also observed in the course of hearing that the ld. Commissioner (Appeal) in Para 7 at page 2 of Appeal order brought out entire case finding seizure and confiscation proper.