ORDER
C.N.B. Nair, Member (T)
1. Both the Revenue and the transporter are in appeal against the same order. Accordingly, both appeals are heard together and are disposed of under this common order. Material facts relevant to this case are that Truck No. RJ-14-IG-3147 of Rajdhani Express Transporter Co. was intercepted when it was carrying goods from Delhi near Chandwaji 40 K.M. from Jaipur on 29-6-2002 by Customs Authorities and goods valued about Rs. 10 Lakhs seized. About Rs. 9 Lakhs worth of the goods appeared to be of Indian make and the remaining of foreign make. They were confiscated in adjudication by the Joint Commissioner of Central Excise, Jaipur. The appellant took up the matter in Appeal before the Commissioner appeals, Jaipur. Me held that there is no case made out against the goods which are of Indian Origin. In respect of foreign goods, the Commissioner held that the goods had been notified under Section 123 of the Customs Act 1962 which had the effect of shifting the burden of proof as to legal import to the owner to the person from whose possession or custody such goods have been seized. Since that burden had not been discharged the, Commissioner held that goods became liable to confiscation. Revenue is in Appeal against the release of the goods of Indian origin, while the transporter is in appeal against the confiscation of the foreign made goods.
2. I take up the appeal of the Revenue first. The Commissioner’s finding on the goods and the reason for their release are to be found in para 5.1 of his order. That para reads as under :-
“5.1 The seizure of goods valued at Rs. 8,76,326/- was made under the provisions of Rule 24 of Central Excise Rules, 2002 under the reasonable belief that the impugned goods had been brought without payment of duty and were liable to confiscation under Rule 25 ibid. However, it is surprising to note that no duty has been quantified and demanded in the impugned show cause notice nor confirmed in the impugned order. The columns in respect of duly (Column 8) in the Annexure in respect of goods seized under Central Excise Rules to the panchanama are also left blank. This indicates that the impugned goods are not contraband in nature inasmuch as under the circumstances they cannot be held to be non-duty paid unless contrary is established. The appellate authority is bound by existing case laws. If has constantly been held that the goods found in the open market are duty paid, The investigation made by the department falls to discharge its onus of proving that the impugned goods were not duty paid in nature as held by the Hon’ble Supreme Court in the case of Collector v. Kapson Electro Stamping -1991 (53) E.L.T. A79. The department has also failed to make any enquiry at the manufacturers and to know whether the impugned goods were duty paid or not. This has neither been reflected in the impugned show cause notice nor in the impugned order, which does not demand Central Excise duty. As such in view thereof, the appellants’ submissions supported with case law gain strength on the face of weak investigation. In absence of the basic ingredients of Rule 25 ibid for confiscation of goods, I am, therefore constrained to set aside the confiscation of goods made under Central Excise Acts and Rules. Since, no viable case of violation of Central Excise Act or Rules is made out, the penalty under Rule 26 ibid imposed on appellant No. 2 is also set aside.”
3. The contention of the Revenue authorities is that the transporter had not furnished the particulars about the consigner or consignee and in its absence they were not able to ascertain details about the manufacture, payment of duty etc. It is being contended that since nobody has claimed the goods and the documents covering the goods are found to be fake, the goods should have been confiscated and the transporter subjected to penalty as done under the original order. As against this, the contention of the learned Counsel appearing for the transporter is that the transporter is entitled to claim the goods and it is well settled in Rajeev Kumar Aggarwal v. CEGAT -1997 (94) E.L.T. 76 (Del.) that the Customs authorities were not to carry out any investigation about the ownership of the goods under transport and that when no case is made under the Central Excise Act, goods will be released to the transporter. The learned Counsel has relied on the observation made in para 4 of the judgment which is reproduced below :-
“4. It was then not for the Collector or for the Appellate Tribunal to go into the question of ownership of goods. It the Customs Authorities had seized the goods from the Railway Authorities to investigate, if they were smuggled goods and if there was no proof thereof, they ought to have restored the goods to the Railway Authorities. If will be for the Railway Authorities to decide what is to be done with the goods. All observations made by them with regard to the ownership of goods are therefore, set aside. This however, does not mean that we have adjudicated on the question of ownership of the goods, nor that we are accepting that the petitioner is the owner of the goods nor that he was entitled to possession from the Railways. The Customs Authorities will restore the goods to the Northern Railways and it will be for the petitioner to make an appropriate claim before the Railway Authorities to decide the claim of the Writ Petitioner in accordance with Law.”
4. Position under Central Excise law is not any different. Central Excise Law is a law on taxation of goods manufactured in India. In the present case, no case is made out by the Revenue at all as to who manufactured the goods and removed without payment of duty. There is also no duty demand made under the impugned order. It is well settled in the case of CCE v. H.M.M. [1995 (76) E.L.T. 497 (S.C.) that when there is no duty demand, there is no justification for other proceedings. In the present case, in the absence of a duty demand and any case made of manufacture and removal without payment of duty, the Commissioner was right in his order to release the goods. Therefore, there is no merit in the appeal of the Revenue.
5. The grievance of the assessee with regard to the order of release is that the Commissioner has exceeded his jurisdiction in ordering that the goods shall be released “subject to clearance from the Sales Tax Department”. It is the submission of the learned Counsel that this vague direction in the order has effectively frustrated the release of the goods. In the present case there is no finding as to what Sales Tax was due on the goods whether State Sales Tax or Central Excise Tax or whether Sales Tax is due at all. Commissioner’s direction subjecting clearance to Sales Tax is not justified at all. It is being pointed out that it is well settled [Woodmen Industries and Ors. v. CCE, Patna reported in 2004 (164) E.L.T. 339 (T) = 2004 (60) RLT 330] that authorities under one law are not competent to go into obligation under other laws. The goods are required to be released to the appellant without precondition since the proceedings initiated were found to be not sustainable.
6. The grievance raised by the transporter with regard to the confiscated foreign made goods is that the Commissioner has passed the order of confiscation on an erroneous belief that the electronics goods under seizure had been notified under Section 123 of the Customs Act. The electronic items specifically mentioned in the order is Car Stereo. The learned Counsel for the transporter has placed Notification No. 204-Cus., dated 20-7-1984 as amended upto 15-3-1993 issued under Section 123 of the Customs Act. A perusal of this Notification makes it clear that Car stereo is not one of the items notified, Therefore, the finding about the electronic goods appears to be clearly erroneous. Learned Counsel has also pointed out that the Commissioner was taking a new ground inasmuch as the show cause notice had not alleged that the goods are notified under Section 123. Since the goods have been confiscated only on the ground of they being notified under Section 123, and since there is no other material to suggest they are smuggled nature, the confiscation has to be held as not sustainable.
7. In view of what is stated above, the appeal of the Revenue fails and is rejected. Appeal of the transporter succeeds. The impugned order is set aside and appeal is allowed. The goods under confiscation, including the truck, shall be released to the transporter.