BHABATOSH KUMAR BASAK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The challenge in this revisional application is to the order dated 29th September, 2010 passed by the learned Metropolitan Magistrate, Calcutta in a proceeding being C-1918 of 1998 under Section 135(1)(b)(i) of the Customs Act, 1962, where by the prayer of the petitioner for return of the seized gold biscuits was rejected. The petitioner has also prayed for quashing of the proceedings on the ground that in the Departmental Proceedings the Tribunal allowed the petitioner to redeem the gold biscuits in question on payment of fine of Rs. 25,000/- along with payment of appropriate duty thereon. On 23rd June, 1998, a complaint petition was filed by the Superintendent of Customs (P), Calcutta against the petitioner, Bhabatosh Kumar Basak alias Manu, proprietor of M/s. Matadi Jewellers under Section 135(1)(b)(i) of the Customs Act alleging therein that pursuant to an information and on the strength of search authorization, a group of Customs Officers under the leadership of Mr. G.C. Murmu, searched the shop premises under the name of style M/s. Matadi Jewellers, a proprietary business of the petitioner, in presence of witnesses and recovered nine cut pieces of gold biscuits of foreign origin with hammer marking thereof. On demand, the petitioner, Bhabatosh Kumar Basak, failed to produce any legal and valid document in support of his possession of the said gold biscuits of foreign origin. Accordingly, those were seized by the Customs officials on the reasonable belief that those foreign gold biscuits have been imported illegally into India in contravention of the provisions of the Customs Act. The petitioner made voluntary statements on 29th April, 1997 and 30th April, 1997 before the Customs Authorities after receiving notice from their office that he was having a trade licence for running the business of jewellery and the seized gold biscuits were purchased from brokers unknown to him. He also admitted before the Customs Authorities that the gold biscuits were hammered by him in order to erase the foreign markings embossed thereon. He, however, tried to retract his statement by filing some documents subsequently.

(2.) The Customs Authorities adjudicated the matter in a departmental proceeding being Order-in-Appeal No. S-591/Kol/2004, dated 5th October, 2004. The Adjudicating Authority passed an order that nine cut pieces of gold biscuits under seizure are directed to be absolutely confiscated under Section 111(b) of the Customs Act and a personal penalty of Rs. 2 lakhs is imposed on Sri Bhabatosh Kumar Biswas, the petitioner herein, and the penalty amount should be deposited in the Customs House Treasury forth with.

(3.) That order was challenged by the petitioner in the Customs, Excise and Service Tax Appellate Tribunal and the said Tribunal by the Order No. A-594/Kol/2005 allowed the appeal with the following observation: