ORDER
Archana Wadhwa, Member (J)
1. All the three appeals are being disposed of together, as they arise out of the same impugned order passed by the Commissioner of Customs, Kolkata vide which he has absolutely confiscated 195 (One Hundred Ninety Five) bundles of clothes of different varieties on the finding that the same were meant for export to Bangladesh. In addition, personal penalty of Rs. 5 lakhs on each of the three captioned appellants, has been imposed upon.
2. As per facts on records BSF officers seized 195 bundles of clothes of different varieties from the ‘Char’ area which was around 2 kms. away from the Border. The recovery was made during 22.00 hrs. on 1.12.01 to 6.00 hrs. on 2.12.01. The goods was subsequently handed over to Jalangi Customs on 4.12.01, when the same were seized on a reasonable belief that they were being attempted to illegal export to Bangladesh.
3. The three appellants in question subsequently, on 4.1.02 claimed the ownership of the goods in question and submitted that the same were purchased by them from shops of Kolkata for resale from their authorised cloth shops situated at Narasinghapur in the district of Murshidabad. It was submitted that when the truck was carrying the goods, its tyre was punctured on its way and the same was standing at Naidapara, where BSF personnel arrived and lifted the entire goods. It is the appellant’s main contention that the goods were not seized by BSF Officers from the “Char” area, but where forcefully lifted by them from the truck at a different place. In support of their above submission, the appellants produced certificates issued by seven local residents to the effect that the goods were recovered from the lorry standing at Naidapara on 2.12.01. The driver of the truck also lodged a complaint with the police on 2.12.01.
4. On the basis of the appellants’ representations, summons were issued to various persons who appeared and deposed in their statements that the goods were recovered by the BSF not from the place shown by them but from a different place. They also produced the bills/challans showing purchase of the goods from Kolkata, and also submitted that they own shops which were properly licensed under the licences issued by Govt. of West Bengal i.e. by the Directorate of Textiles, Director of Cottage and Small Scale Industries, Textile Licensing Section, Baharampur. They also hold Trade Licences issued by the respective Gram Panchayats and pay Professional Tax under the provisions of the W.B. State Tax of Professions, Trades Callings & Employments Tax Act, 1979.
5. On the above facts, the appellants were issued show cause notices proposing confiscation of the Textile materials in question as also the personal penalty upon the three appellants. The three show cause notices culminated into the impugned order and hence the present appeals.
6. Shri B.N. Chattopadhyay, learned Consultant appears on behalf of the appellant alongwith Shri P.K. Ghosh, Consultant and reiterates the same submissions made before the adjudicating authority. His main contention is that inspite of the appellant having claimed that the goods were seized from a place much away from the border and in spite of their having placed seven certificates from the local residents on record with a request to conduct an enquiry, the Department did not bother to get in touch with the said local residents so as to find out the truth. He submits that even the driver of the lorry had stated that the goods were recovered by the BSF from a place near Naidapara when the khalasi was changing the tyre. He submits that the Commissioner has passed the impugned order on the basis of assumption and presumption and has not caused proper enquiries even from the shops from where they purchased the goods. He submits that there is no evidence that the goods were seized from the ‘Char’ area which means an area near the bank of the river. He submits that the Bangladesh is on the other side of the river Padma, and the BSF officers, strangely did not find out any boat or steamer to carry the goods to Bangladesh. Furthermore, there is nothing in the BSE record as to how the goods worth Rs. 44,00,000.00 (Rupees Forty Four Lakhs) can reach the ‘char’ area, and were lying there unattended. He also submits that the Commissioner has observed that the BSF personnel were not having any interest in falsification of the place and time of seizure. Further, he submits that BSF have a definite motive and interest to sustain the charge of export in as much as they get the major share of reward of 20% of the value of the goods which were ultimately confiscated of the Department. Shri B.N. Chattopadhyay has drawn our attention to the various decisions of the Tribunal wherein the Customs officers deputed to enquire into the place of seizure themselves, admitted that the place of seizure by the BSF authorities, in identical set of facts and circumstances, was not correct. He also submits that in all these judgments, the Tribunal has extended the benefit of doubt to the appellants and has set aside the order of confiscation and penalty. Shri A.K. Mondal, learned SDR, appearing for the Revenue reiterated the reasonings adopted by the Commissioner in her impugned order.
7. We have considered the submissions made by both the sides and have gone through the impugned order of the Commissioner. As regards the place of interception, the Commissioner has denied the appellants’ claim on the ground that they have failed miserably not only to furnish any conclusive evidence in support of their claim for the place of interception by the BSF personnel but also to establish such specific motive or interest of the BSF personnel for any fabrication or falsification in this regard. The above finding has been strongly opposed by the appellants on the ground that while making their claim of ownership of goods, they had placed on record certificates of seven local residents of that area deposing that the goods were recovered from Naidapara. It is seen that even after receipt of the above claim alongwith the certificates, the Revenue has not conducted any enquiries either from the said seven persons or from the other local residents of that area. The appellants have done whatever they could do in the said circumstances, and now it was for the Department to test the veracity of their claim by conducting enquiries. It is also seen that the appellants alleged that BSF Officers inspected the goods in a routine manner and showed the same as having been recovered from a place near the border. As such, a request had been made to conduct an indepth enquiry in the matter which the Revenue failed to do, and it is recorded in the impugned Order that as per BSF report, date and time was from 22.00 hrs. on 1.12.01 to 6 00 hrs. on 2.12.01. It is not understood as to how the goods which were lying in bales in an unclaimed condition and with no opposition from any person could take place for a period of 8 hrs. to seize the same. Specific area from where they were recovered is also not mentioned. There is nothing on record to show that an ordinary prudent man would leave the goods worth Rs. 44 lakhs (Rupees Forty Four Lakhs) at a place near the border, unattended by any person for supervision at the time of seizure.
8. The Commissioner has, further, noticed that the volume of business and financial status of the noticees is such that it is difficult to surmise that such a huge amount of money, required for the purchase of such a bulk quantity of textile materials, could be provided by them. However, the appellants have contended that they have taken the goods on credit. In any case, the above reasoning of the Commissioner is in the nature of her own personal assessment of the financial status of the appellants and there is no evidence on record to reflect upon their business activities. It was open to the Customs Officers to verify and check the appellants’ records as regards the sale made from their shops during the previous periods. However, that not having been done, on the basis of her personal views, the Commissioner cannot deny the appellants’ claims.
9. The appellants had placed on record bills and invoices showing purchase of the goods. It is observed that no enquiry was conducted even from the persons i.e. the shop owners who had sold the goods to the appellants under bills and invoices. Further, it is seen that the appellants had produced the transport documents which stand rejected by the Commissioner by observing that one of the claimants is the owner of the carrier vehicle and it is not difficult at all for him to prepare that require road challans. We must observe here that the above views of the Adjudicating Authority are in the arena of assumption and presumption, and not based on any concrete evidence, in as much as no enquiry have been conducted even from the transport company.
10. In the absence of any proper investigations having been conducted by the Revenue, and the place and time of seizure being contested by the appellants and the entire case of revenue having been based upon the BSF seizure, the goods in question cannot be confiscated under the provisions of Section 113(B) & (d) of the Customs Act, 1962, and therefore, the personal penalty cannot be imposed on the appellants. In view of the above, we set aside the impugned order and allow the appeals with consequential reliefs to the appellants.