BIMAL DAS Vs. COMMISSIONER OF CUSTOMS (PREV.), KOLKATA

JUDGEMENT

(1.) HEARD both sides. Mrs. Chandreyi Alam, ld. Advocate appearing for all the three appellants, states that some of the vital submissions made on behalf of the appellants have not been taken into consideration by the lower appellate authority while passing the impugned order. She states that the BSF personnel who apprehended the impugned goods at the Border took away the documents which accompanied the goods carried as head loads by licensed Labourers and this fact was brought to the notice to the Superintendent, LCS, Ghozadanga by a letter dated 24 -1 -05 soon after the seizure on 17 -1 -05. Though the submission in this regard is in the second paragraph under the Statement of Facts in the appeal filed before the lower appellate authority, he has not called for the records and verified these aspects while coming to the conclusion that the appellants have not adduced any material evidence regarding the allegation that the BSF personnel have snatched away the accompanied documents. She further states that since the goods have been carried as headloads by the licensed Labourers and the documents were taken away by the BSF personnel, the appellants have no other evidence, but the facts could have been verified by calling the concerned BSF personnel and examining them. She also states that the lower appellate authority has come to the conclusion that the show -cause notice was served on the appellants as the same had not been returned by the postal authorities as undelivered. The ld. Advocate has also produced a copy of the letter C.No.VIII(15)l/RTI/Cus/BCD/09/834 dated 6 -2 -09 from the Assistant Commissioner of Customs, Barasat Customs Division to the effect that the Issuing Register has been checked, but the amount of postage stamp as well as the name of M/s. Proactive Express as addressee are found to be non -existent. This information has been supplied under the provisions of the Right to Information Act (RTI), 2005 to one of the appellants. The ld. Advocate states that in view of the aforesaid information given by the concerned Assistant Commissioner, it is clear that the show -cause notice was never issued contrary to what has been concluded by the lower appellate authority. As such, she prays for re -consideration of the evidence and for return of the goods in view of the provisions under Section 110 of the Customs Act, 1962 as it is clear that no show -cause notice was issued. She also prays for passing of an order setting aside confiscation of the goods and imposition of penalties.

(2.) HEARD the ld. DR for the Department. He supports the impugned order and states that the information subsequently obtained under the RTI Act and produced before the Tribunal was not before the lower appellate authority and hence, he prays that the matter may be remanded to the lower appellate authority, so that he can call for the records from the Divisional Office situated in the Customs House Complex itself to ascertain the correct state of affairs.

(3.) AFTER hearing both sides, I find that the arguments advanced by the ld. Advocate appearing for the appellants have substance. The lower (Original), authority has recorded in his order that the appellants claimed the goods first time on 10 -8 -05 alleging that the BSF personnel destroyed the accompanied documents. This conclusion is contrary to the fact on record as one of the appellants has made such allegation and has claimed the goods on 24 -1 -05 itself. As such, the submission was also made by the appellants before the lower appellate authority as is clear from their appeal papers filed before him. Secondly, the authorities below have come to the conclusion that the show -cause notice was issued to the appellants. Now, this conclusion is contradicted by the evidence obtained by the appellants under the RTI Act as the Assistant Commissioner of Customs, Barasat Division, has categorically stated that the amount of postage stamp and even the addressee, M/s. Proactive Express are found to be non -existent as per the Issuing Register.