TMI Blog2003 (4) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... olutely confiscated 400 cartons of phensedyl cough linctus totally valued at Rs. 6,26,704/- under the provisions of Section 113(b) of the Customs Act, 1962 on the findings of the attempted export of the same to Bangladesh. In addition, personal penalties have been imposed upon M/s. Zenith Drugs Applied Agencies (P) Ltd. who are C F Agent of M/s. Rhone Roulenc (I) Ltd. (hereinafter referred to as RPIL) on M/s. Sree Ma Drugs for alleged attempt to export the goods on Shri Uday Krishna Paul, who is Managing Director of M/s. Zenith Drugs Allied Agencies (P) Ltd. and on the other appellants who are partners of M/s. Sree Ma Drugs. 2. As per facts on records, the Customs Preventive Officers of Agartala Division visited the business premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are required to be picked up by the consignee from their godown premises. 5. During the post seizure investigation, statement of Shri Keshab Paul, partner of M/s. Sree Ma Drugs was recorded on 25-9-2001 who deposed that they were authorised stockists of M/s. RPIL and the consignment of medicines has been purchased by them from C F Agent on the basis of their supply order dated 11-8-2001 and the same has been transported from Guwahati to Agartala through the transport agency. He produced on record the papers to show that M/s. Sree Ma Drugs was licenced by the Drugs Controller, was a registered partnership firm, was an authorised stockist of M/s. RPIL, had placed a supply order dated 11-8-2001 upon C F Agent and the goods have been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allied Agencies (P) Ltd. to export the same illegally to Bangladesh and confiscated the goods absolutely and also imposed personal penalties upon the various persons. 11. Shri K.K. Bhattacharyay, ld. Consultant, appearing for the appellants submits that the medicine has been obtained by Sree Ma Drugs under the cover of invoice issued by C F Agent of M/s. RPIL and was being transported under the cover of legal documents issued by the transporters. The goods were declared at Churaibari Sales Tax Gate at Assam, Tripura border and after arrival of the goods at Agartala permit from Sales Tax authorities were also obtained. If the goods were meant for illegal export to Bangladesh, the same would not have been procured under the cover of lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of bottles in question by way of 13 payment orders purchased from a bank other than their own bank reflects mala fides. The place of seizure is within 3 km. from the border area and as such there was a clear attempt on the part of the parties involved to smuggle the goods out of India. 13. I have considered the submissions made from both the sides and have gone through the impugned order passed by the Commissioner. The main issue required to be decided as to whether the 20,000 bottles of phensedyl cough linctus contained in 400 cartons procured by M/s. Sree Ma Drugs was meant for illegal export to Bangladesh or not. The investigation conducted during the course of post seizure period has revealed that M/s. Sree Ma Drugs sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther note that Sree Ma Drugs have claimed that they were appointed stockists by M/s. Zenith Drugs Allied Agencies (P) Ltd., C F Agent of M/s. RPIL in the month of September, 2001. Apart from the fact that the supply order was placed before the said appointment in the month of August, 2001 itself. It is also on record that M/s. RPIL had clarified that their C F Agent are not authorised to appoint any stockist. It has also been clarified by them that Sree Ma Drugs is not an authorised stockist for that area. There is no defence of the appellants in this regard. It has also been seen that Sree Ma Drugs had not transacted any business of medicine except for the consignment under seizure. There is no explanation from M/s. Sree Ma Drugs as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section has to be interpreted keeping in view the peculiar facts and circumstances of each case. The Commissioner in his order has observed that the place of seizure in the instant case was within 3 km. from the International Border and the entire Agartala as within 5-6 kms. of Bangladesh Border on two sides. In the case of M/s. Manilal Bhanabhai Patel v. Union of India reported in 1992 (60) E.L.T. 99, it was held that ...............near the land frontier means that if it is brought at some short distance place from the coastal area of the land frontier, say 5-6 kms. from the coast or nearby than it would be near the coastal area or land frontier.......... . Inasmuch as the goods have been brought to Agartala which is only within 5-6 kms ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
