ORDER
V.K. Jain, Member (T)
1. This is an appeal filed by the appellant, Shri Rabi Dutta against the Order-in-Appeal No.PREV/CUS-190/2004 dated 11.08.2004 passed by the Commissioner of Customs (Appeals), Kolkata, vide which he has rejected the appeal before him. The issue relates to absolute confiscation of 2,046 Kgs. of Metal Scrap, 2 Nos. old/used Country Boats and 16 Nos. old/used Bi-cycles, as ordered by the lower authority i.e. Additional Commissioner of Customs (Prev.), West Bengal, Kolkata. The appellant has claimed ownership of the metal scrap in question. The Commissioner (Appeals) rejected the appeal of the appellant and hence this appeal. The facts in brief are as follows:
1.1. The B.S.F. personnel seized the above goods as unclaimed and handed them over to the Customs Authorities for initiating proceedings under the provisions of Customs Act, 1962. The lower authority did not consider the claim of the appellant and absolutely confiscated all the goods and imposed a penalty of Rs. 1,000.00 (Rupees one thousand) on the appellant. However, the Commissioner (Appeals) has set aside the penalty of Rs. 1,000.00 (Rupees one thousand) imposed on the appellant.
2. Heard Shri N.K. Chowdhury, learned Advocate for the appellant. He has submitted that the Order of the lower authority as well as the Commissioner (Appeals) is not correct. He submits that the BSF personnel had forcibly taken away and seized the metal scrap, which is of Indian origin. The appellant had procured the same legally. He also submits that the Customs Department did not make any enquiry whether or not the appellant was transporting his legally and bonafide acquired/possessed scrap from his place of stay i.e. Islampur to Behrampore-Khagra market to sell those to Maa Dhirabati Basanalaya, Khagra Bazar, Murshidabad on the strength of a Challan dated 21.3.2002. He also submits that the BSF’s report of seizure of the Metal Scrap and the Country Boat in question was only an allegation. But the report has no evidentiary value unless corroborated by an independent evidence. He, further, submits that the Metal Scrap under seizure was not covered by Section 123 of the Customs Act, 1962. As such, the burden of proof that the goods had been smuggled, is on the Customs Department and the Customs Department failed to discharge that onus. In view of this, he submits that the Order of the Commissioner (Appeals) be set aside and the appeal be allowed.
2. Heard Shri Y.S. Loni, learned J.D.R. for the Revenue. He submits that when this case was heard on 17.8.05 by the learned Member (Judicial), the Bench had directed Shri K.K. Sanyal, J.D.R. to produce the Seizure Memo forwarded by the B.S.F. Shri Loni has now submitted a copy of the said Seizure Report for perusal of the Bench with a copy thereof, to the learned Advocate. He submits that the authenticity of the BSF’s Seizure Memo was neither rebutted nor contradicted by any evidence produced by the appellant. No evidence has been produced by the appellant to substantiate their contention that the BSF personnel had forcibly seized the Metal Scrap from his possession. From the Seizure Memo furnished by the BSF, it is evident that the impugned goods had been recovered as unclaimed ones in the vicinity of the border area. He also submits that the appellant did not lodge any FIR with the local Police Station against the alleged seizure by the BSF personnel. He, further, submits that the allegation of the appellant that the BSF personnel had forcibly seized the Metal Scrap from his possession, is not substantiated by any corroborative evidence. The fact remains that while the goods were seized by the BSF personnel in the border area, they were not claimed by anybody, and accordingly, the same was liable for confiscation in terms of the provisions of Section 111 of the Customs Act, 1962. He also submits that the appellant had, however, filed a Claim Petition of those goods, after three months from the date of its seizure by the BSF personnel. This itself is doubtful on the genuineness of ownership of the claim made by the appellant.
3. I have heard both sides. I have perused the Seizure Memo prepared by the BSF which speaks as follows:
On 21.3.2002 at about 04.00 hours, Special Ambush Party of BOP, Kaharpara Party led by Sh. Suraj Singh, A.C. along with 030Rs observe that some miscreants were coming through 02 wooden boats in river, Padma near B.P. No.57/2s distance from IB approximately 700 Mtrs. and distance from BOP approx. 1.5 K.M On challenge, miscreants were fled away leaving behind the goods and seized as unclaimed in coming. Seized goods being handed over to your Customs Office.
3.1. The above report has been signed by the Company Commander. The Customs have received these goods on 1.4.02 under Section 110 of the Customs Act, 1962. From the Seizure Memo, it transpires that the goods had been seized in the river, Padma at a distance of 1 1/2 Kms. from B.O.P. The appellant has claimed that the BSF personnel have forcibly seized 2046 Kgs. of Metal Scrap from his possession. At no stage, the authenticity of the BSF personnel’s Seizure Memo has neither been rebutted nor contradicted by any evidence produced by the appellant. The appellant has claimed that the goods have been seized from the Doulatabad Bus Stand, which is 30-35 Kms. away from the international border. I agree with the finding of the Commissioner (Appeals) that the appellant has not produced any evidence to prove his contention. This is also a fact that the authenticity of the BSF Seizure Report has not been contradicted by any evidence produced by the appellant. The Commissioner (Appeals) has correctly held that there is no statement either by any witness or by the conductor of the bus that the goods have been seized forcibly by the BSF personnel. I agree with the Commissioner in his finding that the claim made by the appellant that the seizure was effected by the BSF at the Doulatabad Bus Stand, merits rejection, as there is no corroborative evidence. It is also a fact that the appellant did not lodge any FIR with the local Police Station against the seizure by the BSF personnel. I agree with the Commissioner (Appeals) that had the impugned goods were forcibly seized or taken away by the BSF personnel, the appellant would have lodged an F.I.R. with the Police. However, no such corroborative evidence has been furnished by the appellant. In the absence of any such evidence, I find that the conclusion reached by the Commissioner (Appeals) that the goods seized by the BSF as unclaimed, were not seized from the possession of the appellant, is correct. The appellant has made a Claim Petition after a lapse of nearly three months of the seizure of the goods in question by the B.S.F. I am also in agreement with the observation that this itself has cast a serious doubt as to the genuineness of the ownership claim put forth by the appellant. The appellant has not given any reason/explanation for such late claim made by him. In the absence of any reason/explanation for such delay, the claim made by the appellant is untenable. Therefore, I find no infirmity in the Order passed by the Commissioner (Appeals). I confirm the impugned Order and reject the appeal filed by the appellant.