Commr. of Customs (Prev.) vs Raj Kumar Jaiswal

Bhaskar Bhattacharya, J.—This application u/s 130A of the Customs Act, 1962 (hereinafter referred to as the Act) is at the instance of the Revenue and is directed against the order dated 25th February, 2002 passed by the Customs, Excise and Gold Control Appellate Tribunal, East Zonal Bench, Kolkata, thereby disposing of appeals preferred by various persons against the order of Commissioner of Customs (Preventive), West Bengal by which he confiscated the metal scraps involved in three different seizure cases with an option to the owner of the same to redeem those on payment of redemption fine of Rs. 2,00,000/-. The Commissioner of Customs (Preventive) further held that on such redemption, the owners were liable to pay Customs-duty leviable on the goods and in addition to that, three trucks used for transportation of metal scraps had also been confiscated with an option to the owners to redeem the same on payment of redemption fine of Rs. 15,000/- each. Personal penalties of various amounts ranging from Rs. 5,000/- to Rs. 1,00,000/- have also been imposed upon the different respondents.

The facts giving rise to filing of the present reference application may be summed up thus :

(a) On 11th July, 1998, a truck loaded with metal scraps was intercepted and the scraps were apprehended to be of foreign origin. The driver of the said truck deposed that the scraps were for onward delivery to one Raj Kumar Jaiswal and were brought from Bangladesh in small quantities by local cycle-carriers through different unauthorised routes of Indo-Bangladesh border and were accumulated in Islampur, District - Murshidabad.

(b) The persons found with the truck could not produce any covering document for those metal scraps. During interrogation, it also revealed that huge quantities of metal scraps of foreign origin obtained through ship-breaking were lying at the godown of Raj Kumar Jaiswal. The officers immediately rushed to the godown but did not find any metal scrap therein. However, one stock-register and one challan-book were recovered. The stock-register had shown that the metal scraps were procured from different persons of Islampur. It further came to light from the entries made in the challan-book that some metal scraps were sent to M/s. Megacity Cargo Movers Company on the said date.

(c) The officers, subsequently, found a truck in front of the transport company and seized the same along with metal scraps on the ground that those were imported illegally into India. Statements of Raj Kumar Jaiswal as also the statement of staff of M/s. Megacily Cargo Movers Company were recorded.

(d) The third seizure was made on 27th July, 1998, when a truck loaded with ship-breaking scraps was intercepted by the officers and the statements of various persons were recorded to the effect that the metals were smuggled from Bangladesh through unauthorised routes.

(e) Based upon the above facts, the respondents were served with show-cause notices proposing confiscation of metal scraps and the trucks and imposition of personal penalties upon the indicted persons. During adjudication proceedings, the owners of the metal scraps produced the documents to the effect that those were purchased from various persons on cash-payment and contended that the statements of the drivers and other co-accused without any independent corroboration could not be the basis of formation of charges of involvement in smuggling. It was further submitted that metal scrap seized was not a notified item under the provisions of Section 123 of the Act and as such, the onus to prove that those were smuggled goods lay heavily upon the Revenue. It was further contended that such metal scraps were being sold in the local market in the District of Murshidabad and from such market, the stocks were accumulated and thereafter, those were sent to Kolkata for sale to the different vendors.

(f) However, the respondents'' contention did not find favour with the Commissioner who passed an order of confiscation and personal penalty as mentioned earlier.

(g) Being dissatisfied the respondents preferred different appeals before the Tribunal and by the order impugned herein, the Tribunal has set aside the order passed by the Commissioner of Customs (Preventive) on the ground that he wrongly placed the onus upon the respondents to prove that those were not smuggled goods in spite of the fact that the item was a non-notified one and at the same time, no independent corroborative evidence was adduced on behalf of the Revenue.

3 Being dissatisfied, the present reference application has been filed.

Mr Mukherjee, the learned Counsel appearing on behalf of the Revenue has vigorously contended before us that the learned Tribunal totally overlooked the fact that although the onus was initially upon the Revenue, the same was discharged and the respondents could not produce any material in support of their lawful possession of the goods in question. Mr. Mukherjee further contends that the learned Tribunal took no notice of various statements made u/s 108 of the Customs Act by the respondents. Mr. Mukherjee further contends that although those were subsequently retracted, no material was produced before the Tribunal showing that those statements were really procured by practising coercion inducement and/or fraud. Mr Mukherjee, thus, contends that there is substantial question of law involved in this reference as the Tribunal has not properly appreciated the fact of discharge of burden by the Revenue and at the same time, failed to take into consideration the statements made u/s 108 of the Act which can be legitimately used against the respondents.

After hearing the learned Counsel for the parties and after going through the materials on record we find that the metal-scrap in question is a non-notified item. From the Chemical Examiners'' Report it appears that those were the mixtures of copper, nickel and zinc and there is no foreign-mark on those goods. The various persons who were examined u/s 108 of the Act merely stated that at Islampur in the District of Murshidabad, ship-breaking materials of foreign origin are stored by various cycle-carriers from Bangladesh and from that place those articles are delivered to the godown of Raj Kumar Jaiswal. But the Customs Authority could not get hold of any of such cycle-carriers who actually brought those materials from Bangladesh while they were allegedly smuggling those goods or even those types of articles. We have already pointed out that in the report of the chemical examination, there is no mention of any attempt of erasing the foreign marks. Even the Revenue could not mention the name of the foreign country where such metal-scraps were allegedly manufactured.

It is true that the statements made u/s 108 of the Act can be used against the persons from whom the materials have been seized without any corroborative evidence, provided, such statement is recorded after service of summons as required under the Act and that those are voluntary. In the cases before us, all that has been proved is that metal-scraps, even having no marks of foreign origin, have been transported from lslampur in the district of Murshida-bad to Calcutta. The seized goods in question being undisputedly non-notified item in terms of Section 123 of the Act, the initial onus is upon the Revenue to prove that those are of foreign origin at the first instance and if the said ingredient is proved, it must further be proved to be smuggled one without the payment of duty. In this case, even the first ingredient has not been established. If the Revenue is unable to disclose even the name of the foreign country where these goods are allegedly manufactured and at the same time, is unable to produce any body who actually smuggled any part of the goods from Bangladesh and in the report on the result of the chemical examination, there is no indication that those are of foreign origin, the Tribunal did not commit any illegality in setting aside the order of confiscation, penalty etc. imposed by the Commissioner. The only reason for forming the alleged reasonable belief that those were smuggled ones was that those were brought from the District of Murshidabad and that there is no seaport near the said District. We find that such findings recorded by the Commissioner are based on mere conjecture.

We, thus, find that the Tribunal did not commit any error of law, not to speak of substantial one, in setting aside the order of confiscation and imposition of penalty as the initial burden of proving the fact that those were smuggled goods of foreign origin was not discharged by the Revenue.

We, therefore, find no merit in this reference application and the same is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs.

Pravendu Narayan Sinha, J.

I agree.