COMMISSIONER OF CUS. (PREV.), KOLKATA Vs. SNEHANSGSHU GHOSH

JUDGEMENT

(1.) The Additional Commissioner of Customs on 24th April, 2009 passed a detailed judgment and arrived at a finding that 11,800 bottles of phensedyl Cough Linctus Syrup were attempted to be illegally exported by Sri Snehangshu Ghosh, the respondent before us. He passed orders for confiscation and also imposed penalty. The finding recorded by him reads inter alia as follows:

(2.) We are really surprised to see that a quasi judicial authority acted in the manner as did the Commissioner of Customs. The Additional Commissioner had arrived at a finding that there was an attempt to illegally export the goods to Bangladesh. It was as such imperative for the appellate authority to point out reasons why was the aforesaid finding recorded by the Additional Commissioner wrong. The appellate authority did not do so. The appellate authority held that there was not even a preparation. No reasons have been disclosed for the aforesaid finding. We do not wish to make any comment as regards sufficiency or insufficiency of the evidence to show that there was in fact preparation made by the respondent because that would amount to loading the dice which should be avoided considering the order we propose to pass. We are far more surprised by the conduct of the learned Tribunal which dismissed the appeal preferred by the Revenue simply by quoting Paragraph 12 of the judgment of the Commissioner of Customs and adding thereto three sentences, which read as follows:

(3.) We are surprised that the learned Tribunal opined that the Revenue could not produce any evidence to discharge the burden of proof. The reasons assigned by the Additional Commissioner of Customs were not demonstrated to be fallacious. Without doing that, the Commissioner of Customs or the Tribunal could not have tinkered with the order of the Additional Commissioner of Customs. The order under challenge is, therefore, set aside. The order passed by the Commissioner of Customs is also set aside. The matter is remanded to the Commissioner of Customs with a direction to hear the parties and to pass a reasoned order within two months from the date of communication of this order. It is desirable that the Commissioner of Customs who passed the order allowing the appeal shall recuse himself from hearing the matter unless there is no other officer who can here out the appeal. In order to avoid the loss arising out of the goods becoming unusable, it would be open to the respondent to apply for sale of the goods in accordance with law and retention of the proceeds in a short term fixed deposit to the credit of the aforesaid lis.