AZIZUR RAHAMAN Vs. COMMISSIONER OF CUSTOMS (PREV.), KOLKATA

JUDGEMENT

(1.) LEARNED Counsel appearing on behalf of the Appellant submitted that there is no doubt that the goods were seized while that was in transit from Murshidabad to Kolkata on interception by Revenue Authorities. Various statements were also recorded for use against the Appellants. It is also not disputed that the goods were taken to a different place for further examination. This is evident from the seizure memo issued by the search party on 19 -9 -2004. The goods were opened by the search party for examination. Seizure memo nowhere describes that certain symbols were marked or any identifiable notings indicating the goods were of foreign origin was available for public inspection. The Authorities have also failed to send the material for any laboratory report to find out discrepancies between Bureau of Indian Standard and Foreign Standard. It is also on record that the Revenue Authorities could not bring out the exporting country and the exporter to record. There is also nothing in the record to show that the goods were manufactured abroad. Also there is no evidence on record that who brought the goods to India to make allegation against the Appellant that the goods were smuggled and were of foreign origin. The material on record not showing any iota of evidence relating to foreign origin of the goods, however the situation may be grave, suspicion shall not be evidence against the Appellant. Surmises and suspicion not being substitute of truth, the Appellant should not face any sort of charges under the impugned proceeding. In view of such circumstances, following the decision of the Honble High Court of Calcutta in the case of Commissioner of Customs (Prev.), W.B., Kolkata v. Raj Kumar Jaiswal - 2006 (204) E.L.T. 561 (Cal.) this Appellant should not face any consequence of the order passed by Authorities below. He also cites the decision in the case of Commissioner of Customs (Prev.), Mumbai v. Shri Ganesh Enterprises - 2006 (199) E.L.T. 208 (Bom.), which was ultimately on Appeal by the Department was dismissed by the Apex Court.

(2.) LEARNED Representative appearing on behalf of the Revenue submitted that there was a broad day -light recovery of the goods by the intelligence. No evidence could be produced by the Appellant at the time of interception. Subsequent evidence showing purchase of the goods from a source in India was proved to be incredible. The normal practice of bringing such goods under cover of certain documents is only to plead that the goods are not of foreign origin. He further pleads that the orders passed after thorough enquiry should not be interfered.

(3.) HEARD both sides and perused the record.