The Union of India and Others vs Sri Sujit Kumar

Rekha Manharlal Doshit, C.J.—This application u/s 130(3) of the Customs Act, 1962 has been filed by the Union of India for a direction to the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata (hereinafter referred to as the ''Tribunal'') to make a reference against the common order dated 16th October 2002 made by the Tribunal in so far as Appeal No. C-279 of 2002 has been allowed. The Commissioner of Customs, Patna has framed the following issues for reference to the High Court:- I. Whether the circumstantial evidence like Trade opinion etc. are not enough to hold and declare the betal nuts to be the foreign origin or of smuggled character.

II. Whether the Tribunal committed serious error in holding that there was no positive evidence regarding finding of contraband nature of the goods.

III. Whether the Customs Act envisages the same degree of proof as required under the criminal law especially in view of the point reading of Section 110 and 111 of the Act.

IV. Whether some degree of preponderance and evidence is required in the taxation matter as required under the criminal law.

V. Whether the smuggling of betal nuts of foreign origin could be set free under the garb that those being non-notified goods under the provision of Section 123 of the Customs Act, onus lies heavily on the shoulder of the Revenue Department.

The matter at issue is the betel nuts seized from the respondent under the premise that the seized goods were of foreign origin and were being smuggled in India. The Tribunal has held that the onus to prove that the betel nuts were of foreign origin and were smuggled in the territories of India lay upon the Revenue. In absence of any evidence, the Tribunal has set aside the orders of the authorities below.

We may observe that the issues raised by the Commissioner of Customs are the matter of facts and not the questions of law. None of the aforesaid issues is referable to the High Court.

The application is rejected. Besides similar issues in Tax Case Nos. 13, 24, 25, 26, 27 of 2001 and 6, 50, 53 of 2002 are, under the judgment and order dated 18th September 2008 passed by this Court (Chandramauli Kumar Prasad, J as he then was and Dr. Ravi Ranjan, J.), answered against the Commissioner of Customs.