COMMISSIONER OF CUSTOMS (PREV.), KOLKATA Vs. BHARAT PAREKH

JUDGEMENT

(1.) REVENUE came in Appeal being aggrieved by the order dated 30 -7 -2007 passed by the learned Commissioner of Customs (Appeals) allowing Appeal of the Respondent setting aside the order of the Adjudicating Authority which was passed on 19 -1 -2007 confiscating goods seized on 19 -8 -2002 and imposing penalty of Rs. 2,500/ - (Rupees Two Thousand Five Hundred only) on the Respondent as well as the transporter. Although there were two parties viz. the transporter i.e. Calcutta Golden Transport and the present Appellant before the learned first Appellate Authority below, the present Appeal by Revenue is against only Shri Bharat Parekh, who was the noticee No. 2 before the learned Adjudicating Authority. Revenues grievance in this Appeal is that the order of the lower Appellate Authority was not legal and proper in view of lawful seizure of the goods from the custody Shri Ram Chandra Sahani, who was representative of the transporter namely M/s. Calcutta Golden Transport at 125, M.G. Road, Kolkata and failed to satisfy the Authorities, leading evidence, as to legal importation thereof since the goods were of foreign origin.

(2.) THE learned JDR appearing for the Revenue supported the order of the learned Adjudicating Authority and reiterated Grounds of Appeal of Revenue praying for remand of the matter to the learned Appellate Authority below for re -examination of the matter in view of the controversy raised by the Respondent as to service of the notice as well as legality of the proceeding.

(3.) LEARNED Counsel Shri T. Hussain appearing for the Respondent argued that the Appellant was never served a notice under Section 110(2) of the Customs Act, 1962 and the so called notice dated 30 -12 -2002 which is the bone of contention of the Revenue was served on different person who was a representative of the transporter, but not on the Respondent. Thus service of the notice on a wrong person does not legalize the proceeding of the Revenue. When the show cause notice was not served, department's effort to assail the order of the learned Appellate Authority below is fruitless. The show cause notice in para 7 at page 3 having disclosed the licit documents having been produced, those were not looked into by the Authority below. Further by letter dated 19 -4 -2003, 28 -5 -2003 and 31 -7 -2003, the Respondent was repeatedly informing the department that he was not served show cause notice. The show cause notice having been served on the Advocate for Respondent on 3 -8 -2005 as seen from the record the proceeding was barred by limitation for no service of notice within six months of seizure of the goods made on 19 -8 -2002. In view of the submissions made, he prayed that the order of the lower Appellate Authority be upheld. The learned Counsel also submitted a written note to the above fact and relied upon the judgment of the Honble Supreme Court in the case of I.J. Rao, Asstt. Collector of Customs v. Bibhuti Bhusan Bagh - 1989 (42) E.L.T. 338 (S.C.).