UMA SHANKAR VERMA Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) THE prayer in the present stay petitions is for dispensing with the condition of pre -deposit of duty amount of Rs. 26,17,906.93 confirmed as duty on the 70 pcs. gold T.T. Bars and with personal penalty of Rs. 5 lakhs (Rupees five lakhs only). The other two applicants, (i) Sri Vijay Kumar Kadel, (ii) Sri Sharwan Kumar Singh, are making a prayer for dispensing with the condition of pre -deposit of personal penalties of Rs. 2 lakhs (Rupees two lakhs only) and Rs. 50,000/ - (Rupees fifty thousand only).

(2.) SHRI S.K. Roy, ld. Advocate appearing for the appellants submits that the matter went to Hon'ble Calcutta High Court prior to adjudication of the case by the Commissioner. (Appeals). The Hon'ble High Court vide its order dated 9th February, 1999 had ordered release of the gold bars to the appellants subject to deposit of Rs. 3,26,560/ - towards duty payable on the gold bars in question and subject to appellants' furnishing a Bank guarantee to the extent of Rs. 5,00,000/ - (Rupees five lakhs) and a bond for Rs. 10,00,000/ - in lieu of any possible imposition of penalty. He further submits that in compliance with the Hon'ble High Court's Order, duty amount was deposited by them and Bank guarantee executed and bond given. He further submits that after the adjudication of the case, the Department has encashed the Bank guarantee of Rs. 5,00,000/ -. As such, an amount of Rs. 8,26,560/ - stands deposited with the Department. He further argues that the adjudicating authority has relied heavily upon the Fax Message received from M/s. Brinks Arya (I) Pvt. Ltd. who are handling agent of M/s. Standard Chartered Bank from whom the appellants have claimed to purchase the bars in question. Such Fax Message is to the effect that there is no chance of mixing up of the delivery of various banks. He submits that the said Fax Message which was received by the Revenue after the conclusion of personal hearing, was never disclosed to them at any point of time prior to adjudication. It is only in the impugned order that the appellants have come to know about the said Fax Message on which the Commissioner has relied upon. As such, he submits that there has been a gross violation of principle of natural justice inasmuch as the appellants have been deprived of their right to defend themselves against the said Fax Message and to challenge the same.

(3.) COUNTERING the arguments, Shri J.M. Kennedy, ld. JDR reiterates the reasoning of the adjudicating authority and submits that it is a clear case of smuggling inasmuch as the markings found on the seized gold bars are different than the markings of actual gold bars imported by the Bank and claimed to have been purchased by the appellants from the Bank through their handling agent. As such, he submits that in view of the letter of M/s. Brinks Arya that there is no scope of any mix -up of the gold bars as regards the delivery of various Banks, the appellants claim is not correct and is not supported by any proof. However, he fairly agrees that the Fax Message received after the conclusion of the hearing should have been shown to the appellants but submits that the Commissioner was adjudicating within time -bound frame in terms of High Court's direction.