COMMISSIONER OF CUSTOMS Vs. KRISHNA SINGH GARBYAL

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -Department under section 130 of the Customs Act 1962 against the judgment and order dated July 14, 2011 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAF) in Appeal Nos. C/26 to 28/ 2008 -CU (DB). On December 5, 2013, this court has admitted the appeal on the following substantial questions of law:

(2.) WHETHER the learned Tribunal is justified in holding that the dispute in the appeal can be resolved without making any reference to the fact as to whether M/s. Krishna Enterprises is the owner of the goods or he is a dummy importer on behalf of the M/s. Elegant Industries and as to whether the import was made as border trade?

(3.) THE learned counsel submits that exemption was allowed only on the border area for the benefit of tribals of the area, but in the instant case, the goods were brought to Delhi. M/s. Krishna Singh Garbyal, proprietary of M/s. Krishna Enterprises, in his statement recorded on October 21, 2005 stated that his firm was established in July, 2005 only. The raw silk was made available to him from Tibet through Shri Ajeet Kumar Gupta, proprietor of one M/s. Elegant Industries, Delhi, who managed the transaction. The profit which earned was shared equally between the firms. Earlier, Shri Ajeet Kumar Gupta, proprietor, M/s. Elegant Industries has filed a writ petition at Delhi, as mentioned in the Tribunal order (paragraph 5). On May 19, 2006, a search was conducted at the premises of M/s. Elegant Industries and also at the residential premises of Shri Ajeet Kumar Gupta. He submits that the raw silk was brought to Delhi. The entire financial investment was made by M/s. Elegant Industries, who has ultimately sold the raw silk in the market. M/s. Krishna Enterprises is only a dummy importer, so the excise duty is leviable. Lastly, he made a request to uphold the order passed by the assessing officer.