ORDER
S.S. Kang, Member (J)
1. The appellant filed this appeal against the order-in-original No. 18-CCP/LKO/95, dated 25-8-1995 whereby the Commissioner (Prev.), Lucknow ordered confiscation of 72,250 Kg. of gambier under Section 111(d) of the Customs Act, 1962 and also imposed a penalty of Rs. 2 lakhs on the appellant under Section 112 of Customs Act, 1962.
2. Brief facts of the case are that on information the officers of Customs (Prev.) Division, Lucknow found a consignment of gambier of foreign origin loaded in the compartment of Vaishali Express booked for Kanpur. From the examination of the Railway record it was found that the said consignment of gambier was booked from Bairgania to Kanpur. Thereafter on the reasonable belief that the goods are of foreign origin other than Nepal and were imported into India in contravention of the provisions of Notificaiton No. 76/65-Cus., dated 19-6-1965 was taken into possession under Section 110 of the Customs Act, 1962. The representative sample of the seized gambier was also taken. The Public Analyst U.P. Govt, Lucknow’s chemical report dated 29-9-1994 state that sent sample of the seized goods were of gambier. Similarly the Central Revenue Control Laboratory, New Delhi vide their report dated 7-10-1994 also stated that sent samples were found to be of gambier. The appellant claimed the ownership of the seized goods and stated that the goods are kutch finish batti of Nepal origin which was cleared through Land Customs station Bairgania vide bill of entry No. 61/94 and 62/94, dated 5-9-1994 and 6-9-1994. The show cause notice was issued to the appellant and after adjudication the impugned order was passed.
3. Ld. Counsel appearing on behalf of the appellant submitted that in a reply to the show cause notice the appellant had clearly pointed out that copies of the relied upon documents be supplied to the appellant. He further submitted that no opportunity of personal hearing was granted to the appellant. The notice of hearing before the Collector was received by the appellant on the date of hearing and they had given a telegram seeking another date but yet the Collector has proceeded to adjudicate the case ex-parte! The Counsel further submitted that the goods in question were duly cleared by Customs authority Bairgania after due consideration and verification and therefore seizure and confiscation of the goods by the Collector of Customs, Lucknow is totally illegal and beyond his jurisdiction. He further submits that the goods were absolutely in conformity in terms of Indo-Nepal Treaty. The goods were accompanied by authorised certificate of origin duly issued by His Majesty’s Government of Nepal. He relied upon the various correspondence exchanged between the different departments of Government of India Inter-se lays down the procedure followed regarding any doubt in the case goods coming from Nepal. He further submits that it has been specifically provided that no goods coming under valid certification of origin issued by His Majesty’s Government of Nepal shall be stopped. The appellant bought the goods under Indo-Nepal Trade Treaty, therefore the Collector of Customs have no jurisdiction to take cognigence of violation of the Treaty or to act as adjudication authority. He further submitted that the Katha and gambier are synonymous in each other and he relied upon the decisions of the Tribunal in case of Continental Corpn. v. Commissioner of Central Excise -1994 (71) E.L.T. 51. In those circumstances, he prays that appeal be allowed.
4. Shri Nanak Chand, ld. JDR appearing on behalf of the respondent reiterated the finding of the Collector of Customs.
5. Heard both sides. In this case, the consignment of gambier weighing 72250 Kg. was taken into possession under Section 110 of the Customs Act, 1962. The contention of the appellant is that it is not a gambier but it is a kutch finish bhatti of Nepal origin. A show cause notice was issued to the appellant and the appellant filed a reply to the show cause notice in which the appellants specifically stated that the copies of the relied upon documents were not supplied to the appellants and they also made a request to cross-examine the witnesses. In the reply they also made a request for personal hearing. The case was fixed for hearing on 17-8-1995 and notice of the hearing was issued to the appellant. The appellant received this notice on 17-8-1995 on the date fixed and immediately they sent a telegram stating therein that notice was received at 3.00 PM on 17-8-1995. The appellant produced the postal receipt regarding issue of telegram and also produced a certificate from the concerned post office where it is certified that the registered letter from Commissioner of Customs (Prev.), Lucknow was delivered to the appellant on 17-8-1995. In these circumstances without going into the merits of the case, we find sufficient force in the plea of the ld. Counsel of the appellant that no fair and effective opportunity of hearing has been given because notice of hearing itself was received on the date of hearing. This fact has been substantially corroborated by the evidence brought on record by the appellant. Therefore, we find that principle of natural justice had not been followed and fair and effective opportunity of hearing had not been granted to the appellant. In addition to this, the relied upon documents demanded by the appellant has also not been supplied to them. In view of the discussion above, we set aside the impugned order and remand the matter back to the Commissioner of Customs (Prev.), Lucknow for deciding the case afresh after supplying the relied upon documents to the appellant and after affording an opportunity of personal hearing. The appellants are at liberty to raise all the legal and factual pleas before the adjudicating authority. The appeal is disposed of by way of remand.
