Allegation of smuggling cannot be upheld on presumptions.

PJ/Case Law /2016-17/3247

Case:- COMMISSIONER OF CUSTOMS, PATNA VERSUSRAM CHANDRA PRASAD

Citation:- 2016 (337) E.L.T. 302 (Tri. - Kolkata)

Brief Facts:-This appeal has been filed by the Revenue against OIA No. 81/PAT/CUS/Appeal/2011, dated 29-4-2011 passed by Commissioner (A) Patna as first appellate authority. First appellate authority has upheld the OIO No. 05-CUS/ADC/ERI/2010, dated 13-1-2010 under which adjudicating authority dropped the proceedings against the appellant.

Appellants Contention:-Sh. A. Kumar AC (AR), appearing on behalf of the Revenue argued that in the present case 41,123 kgs of pulses were stored in a godown which was within 2 km of the Indo-Nepal Border and nobody came forward to claim the ownership of the goods for five months. That on the deposition of the villages before panchas it transpired that goods stored in the godown were meant to be smuggled into Nepal by one Ram Chandra Prasad of Raxaul. That export of pulses is prohibited as per DGFT Notification No. 91/CRE-2007) 2000-2009, dated 1-4-2008. That as per a statement dated 12-9-2008 of Sh. Wazir Ahmed also the seized goods were meant for export to Nepal.

Respondents Contention:- Sh. M.K. Choudhary (Advocate) appearing on behalf of the respondent argued that Sh. Ram Chandra Prasad expired on 17-11-2014 and that Revenue’s appeal is based only on hearsay evidences which is not admissible.

Reasoning Of Judgement:-On hearing both sides and perusal of the case records it is found that revenue has relied upon the oral unrecorded sayings of some of the villagers and the statement dated 12-9-2008 of Sh. Wazir Ahmed, a resident of the village where seizure was made. It is observed from the statement dated 12-9-2008 of Sh. Wazir Ahmed, recorded in Para-1.8 of the show cause notice dated 28-10-2009 that only after seizure of the goods he came to know that Sh. Ram Chandra Prasad was involved in smuggling. It has thus been correctly observed by the first appellate authority in ‘Discussion’ portion of his order dated 29-4-2011 that evidences with the department are only hearsay evidences. It has also been observed by the first appellate authority that the factors of improper transactions in procuring of seized goods can best indicate some lacuna in the functioning of trading activity and cannot be termed as attempt to export. In the present appeal pulses are not specified goods under Chapter-IV of the Customs Act, 1962 to infer that bringing into specified area could be with an intention to export the same out of India.
In view of the above order passed by the first appellate authority is just, legal and proper and no interference from the bench is, therefore, required.

Decision:- Appeal dismissed.

Comment:- The substance of the case is pulses having not been specified as prohibited so there cannot be any reason to infer that bringing same within specified area of Indo-Nepal border could be with an intention to export the same. Since Department case based upon statement of a villager, which is merely a hearsay evidence, confiscation and penalty is ,thus, not sustainable

Prepared By:- Ritika Mehta

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PJ/Case Law /2016-17/3247

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