ORDER
V.K. Jain, Member (T)
1. The four appeals have been filed against the Order passed by the Commissioner of Customs (Prev.), West Bengal, Kolkata by Order No. 08/CUS/COM (PREV)/WB/2003, dated, 30-4-2003.
2. As per facts on record, it appears that on 13-8-2001 at about 11.30 hours, the BSF Officers intercepted one truck loaded with Raw Hides/Skins near Customs Ghat (General Area, Aurangabad) which is 1.5 Kms. away from the Indo-Bangladesh Border. Though the driver and other persons managed to flee away the BSF personnel recovered the Raw Hides/Skins from the truck in question, and subsequently, the goods along with the carrier truck were handed over to the Officers of Customs who on reasonable belief that the Raw Hides/Skins had been attempted for illegal export in the neighbouring country, seized the same as unclaimed by the Customs. The truck on which the goods were being transported, was also seized by the Customs.
3. On 16-8-2001, one Atibur Rahaman, the holder of power of attorney given to him by the actual owner of the seized truck, submitted a petition on the basis of few documents claiming ownership of the seized goods and praying for provisional release of the vehicle in question. He submitted that on 13-8-2001, the truck was carrying Raw Hides/Skins of bona fide traders from Kaliachak, Maldah to Kolkata on the basis of valid documents. The actual point of interception of the truck by the BSF personnel is near Ahiran Bridge, actual time of interception being about 09-00 hours. On 31-8-2001, one Md. Latibur Rahaman, the Proprietor of Star Enterprise submitted a petition claiming ownership of the Raw Hides/Skins. He claimed himself to be a bona fide trader, running the business of Raw Skins/Hides in the name and style of Star Enterprise having head office at Barua, P.S. Beldanga, Dist. Murshidabad with branches in Kolkata and at Kaliachak. On 12-8-2001, he hired the truck and loaded Raw Hides/Skins for onward transportation to the godown of Aftab Hides, Kolkata on the basis of valid documents. On 13-8-2001, on the way to Kolkata, the truck was intercepted by the BSF personnel near Chandemore, who physically assaulted the driver and the khalasi and drove the vehicle themselves to Nimtita BSF Camp. They forced the driver and the khalasi to get down from the vehicle. Md. Latibur Rahaman Referred to the diary lodged by the driver of the truck at Suri Police Station on 14-8-2001. The khalasi also reported the matter to the police. On receipt of the information, Shri Rahaman went to the spot, but meanwhile the seizure of goods was effected by the Customs Officers. Regarding lawful movement of the truck at the point of interception by the BSF personnel, Shri Latibur Rahaman obtained statement of Pradhans of two Gram Panchayats.
4. After investigations, show cause notices were issued by the Customs to the captioned appellants, proposing confiscation of the Raw Hides/Skins under the Customs Act and for imposition of personal penalties on the appellants for their involvement transportation of Raw Hides/Skins attempted to be smuggled to the neighbouring country. The case was adjudicated by the Commissioner of Customs (Prev.), West Bengal, Kolkata by ordering absolute confiscation of the Raw Hides/Skins and the carrier truck, under the Customs Act. However, an option was given to the owner of the truck in question to redeem the same on payment of a redemption fine of Rs. 10,000.00 (Rupees ten thousand). He also imposed personal penalty on the following notices under Section 114 of the Customs Act: –
(i) Md. Latibur Rahaman Rs. 5.00 lakh (Rupees five lakh);
(ii) Md. Atibur Rahaman Rs. 1.00 lakh (Rupees one lakh);
(iii) Md. Samsujjoha Rs. 5000.00 (Rupees five thousand);
(iv) Md. Asbahar Sheikh Rs. 2000.00 (Rupees two thousand).
5. The above persons have filed appeals before the Tribunal against the Order-in-Original passed by the Commissioner of Customs (Prev.), West Bengal, Kolkata.
6. We have heard Shri K.P. Dey, learned Advocate for the appellants and Shri T.K. Kar, learned S.D.R. for the Revenue.
7. The Advocate for the appellants has contended that Shri Latibur Rahaman is a bona fide trader having regular deals in Skins. He runs a business under the name and style as Star Enterprise on a trade licence issued by the proper licensing authority and its head office is at Bejdanga, Dist.: Murshidabad with branches in Kolkata and at Kaliachak. The goods under question were consigned to Kolkata under cover of road challan and sales tax declaration, and that on the way to Kolkata, the BSF intercepted the truck far way from the border. The appellants lodged claim for the Raw Hides/Skins. On 14-8-2001, Md. Alatibur Rahaman himself submitted petitions to the District Magistrate of Murshidabad. He also Referred to the protest/agitation of the local public and also submitted that the skin businessmen of Beldanga blocked the National Highway-34 on 14-8-01 against the seizure. The said agitation was covered by ETV Channel and on request of the Government Officials, the blocked was withdrawn. Learned Advocate submitted that they are having clinching evidences which have neither been enquired into nor been countered by the Department. He, further, contended that the Certificates issued by the Pradhans of Gram Panchayats have not been given credence and no enquiries with such dignitaries or with the local people have been made. He, further, argued that the driver and the cleaner were subjected to physical torture and they had reported the incidents to the Police and lodged a diary under GD Entry.
8. It has been argued that the truck in question was seized from the Highway and not near the Indo-Bangladesh Border, and the driver and the cleaner also appeared before the Customs Authorities and deposed to the above effect. The owner of the vehicle also submitted that the truck was booked for Kolkata. In these circumstances, we find that there is no evidence to show any attempt on the part of the appellants to export the goods to Bangladesh. We set aside the impugned Order passed by the Commissioner of Customs (Prev.), West Bengal, and allow the appeals with consequential reliefs to the appellants.