IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.53 of 2006
Commissioner of Customs, Government of India, Patna, 5th
Floor, C.R. Building, Bir Chand Patel Path, P.S. Kotwali,
Town and District Patna
..... Appellant
VERSUS
Pramod Jhunjhunwala, Proprietor M/s Om Smriti Textiles
Pvt. Ltd., Sujaganj, Bhagalpur
..... Respondent
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For the Appellant : Mrs Nivedita Nirvikar, Advocate
For the Respondent : Mr Ganpati Trivedi, Advocate
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11 25.8.2010 On hearing Mrs Nivedita Nirvikar, the counsel for
the Revenue and the learned counsel for the respondent, it
transpires that out of the common transaction in which 430
kg of silk yarn of third country origin were seized at Patna
Railway Station, three persons were noticed by the
Department for confiscation of the seized goods and for
imposition of penalty. Allegedly, the goods were
purchased by the respondent herein from a firm at Varanasi
represented by one of the noticees Vijay Sarawagi. The
goods were given for transportation to one Moti Singh of
Varanasi.
By the order under appeal dated 25.8.2005, the
Customs, Excise and Service Tax Appellate Tribunal, East
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Zonal Bench, Kolkata allowed the appeal of all the three
noticees in CSM- 98- 100/04. Against that common order
three appeals are said to have been preferred by the
Commissioner of Customs, Government of India, Patna.
One of the appeals bearing MA No.52 of 2006 was
dismissed by a Division Bench of this Court by order dated
25.9.2008. Against that, the Commissioner of Customs
preferred Special Leave to Appeal (Civil) No.11089/2009
before the Hon’ble Supreme Court in which Leave was
granted on 30.11.2009.
According to learned counsel for the appellant, the
issues involved in this appeal are identical to those in MA
No.52 of 2006 and, therefore, this appeal should be kept
pending. On the other hand, learned counsel for the
respondent submits that in identical circumstances MA
No.52 of 2006 has already been dismissed by a Division
Bench of this Court after noticing that according to the
Tribunal, the Revenue had led no evidence to establish that
the subject goods were smuggled by the respondent.
Leaned counsel for the respondent further drew our
attention to the discussion and findings contained in
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paragraph 4.2 of the order dated 17.7.2003 passed by the
Joint Commissioner, Customs, Patna to highlight that on
inquiry regarding the genuineness of the bill of entry
submitted by the noticees, a positive verification report
was received from the Appraiser (EDI), Customs House,
Kolkata and the verification report of the Customs House,
Chennai is still awaited.
Considering the aforesaid facts and circumstances
and the fact that respondent herein has claimed to be a
purchaser of the subject goods from a firm at Varanasi
which has taken a stand that it had imported the goods, we
find no good reason to take a different view than the view
taken by the Division Bench in MA No.52 of 2006. This
appeal is, therefore, dismissed.
(Shiva Kirti Singh, J.)
(Hemant Kumar Srivastava, J )
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