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2016 (4) TMI 831 - CESTAT KOLKATA

2016 (4) TMI 831 - CESTAT KOLKATA - TMI - Whether Betel Nuts, seized are smuggled across Indo-Nepal Border - Confiscation and imposition of penalties - Revenue contended that the documents were pertaining to Betel Nuts loaded on a different truck bearing registration No.RJ-2G-4000 and not truck No.RJ-14-2G-4000 and none of the appellants have claimed the ownership of the goods seized from truck No.RG-14-2G-4000 - Held that:- the argument taken by Appellant No.1 that Betel Nuts were sent through .....

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dicating authority and the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000.

The contradiction in the statement of transporter of Appellant No.1 and the Driver Shri Jagroop Singh clearly brings out that entire s .....

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statement at any stage. Reliance of third party statements without extending cross-examination is not acceptable as evidence when the entire facts of the statement are not true. Minor procedural irregularities in the documents produced by the Appellant No.1 cannot be considered sufficient to hold that Betel Nuts seized were different than the Betel Nuts procured by Appellant No.1 and were of smuggled nature.Also no investigations have been done whether any truck having registration No.RJ-2G-400 .....

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dent : Shri S.Nath, AC(AR) ORDER PER SHRI H.K.THAKUR. Following Appeals have been filed by the Appellants against Order-in-Appeal No.150-157/PAT/Cus/Appeal/2010 dated 25.10.2010 passed by the Commissioner(Appeals) of Customs & Central Excise, Patna as First Appellate Authority, under which Order-in-Original 38-Cus/ADC/DRI/10 dated 30.04.2010 passed by Adjudicating authority was upheld:- Sl. No. Appeal No. Name of the Appellant Appealed against 1. C-56/2011 M/s.Bahubali Attraction Pvt Ltd., K .....

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pellant No.1 Rs.10,000/- of Penalty. 7. C-62/2011 Shri Dhrub Deb Dubey Prop. Of M/s.Rajasthan Assam Roadlines Rs.25,000/- of Penalty. 8. C-63/2011 Shri Maqsood Alam P.O.Kuwari Araria Rs.25,000/- of Penalty. 2. Shri Arijit Chakraborty (Advocate) appearing on behalf of the Appellant argued that 14.7 MT of Betel Nuts of third country origin(valued at ₹ 14.70 Lakh) were seized on 16.05.2008 by the Officers of DRI at a place named Rampur on Araria-Purnea National Highway from a truck bearing Re .....

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anpur by one M/s.Bahubali Attraction Pvt.Ltd., from Kolkata. Driver of the truck Shri Jagroop Singh and Khalasi Shri Anil Sharma under their statements recorded on 17th, 18th & 19th of May, 2008 stated that goods were loaded on to their truck from some tractors at a place named Kuwari at the instance of one Dubeyji of Gulab Bagh Purnea. Shri Maqsood Alam who brought the envelop of documents confirmed that the said documents were given to him by Shri Javed Alam of Araria, for whom he was work .....

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loading Betel Nuts. That Shri R.K.Agarwal of M/s.R.K.Enterprises, Kanpur in his statement dated 19.05.2008 stated that on 23.04.2008 he was informed by one Shri Ramesh, Agent of Kolkata firm that goods have been dispatched and that Shri R.K.Agarwal also came to know that consignment has been detained by Patna Regional Unit. That he also stated to have purchased Betel Nuts from M/s.Bahubali Attraction Pvt.Ltd., Kolkata on many times earlier. That M/s.R.K.Enterprises has filed Commercial Tax Retu .....

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sam Carriers (P) Ltd. and M/s.Uniflex Freight Carriers are their transporters. That concerned Co-operative Societies not coming out for giving statements does not mean that bills provided by Appellant No.1 are bogus. 2.1 Learned Advocate further argued that first appellate authority under Order-in-Appeal dated 25.10.2010 has rejected the appeals of his clients on the following accounts only: (i) That markings on the bags COCOA BEANS (Made in Malaysia) confirm that Betel Nuts were of foreign or .....

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v) That no payment to M/s.NCCF has been made by Appellant M/s.Bahubali Attraction Pvt.Ltd. through Drafts/Cheques. 2.2 With respect to findings of first appellate authority on 2.1 (i) learned Advocate had no objection because according to the appellant No.1 the confiscated Betel Nuts, purchased through NCCF & Co-operative Societies, were also of foreign origin. On the point of reliance placed by Revenue on the statements of Driver and Khalasi it was argued that these persons were detained by .....

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ipient of goods at Kanpur also had knowledge that goods meant for him were detained by Regional DRI Unit of Patna. That the statements of both the Driver and Khalasi can only be statements recorded in duress and can not be relied upon as vehicles not permitted to enter West Bengal in fact do so by unfair means. That M/s.R.K.Enterprises never denied ownership of the goods for which he placed order. That he was not aware of the correct registration number of the truck and even sender of the goods .....

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cooperative societies who make draft in their name for getting goods through NCCF co-operatives. That though the goods are directly obtained by Appellant No.1 from NCCF but on paper it is shown as if the goods are obtained through Co-operative Societies. 2.3 That the case against Appellant No.1 is made only on presumptions and surmises and there is no corroboration of the statements of the Driver and Khalasi who only said the Betel Nuts were not brought from West Bengal. That Betel Nuts being no .....

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j Kumar Jaiswal [2006 (204) ELT 561(Cal.)] (iv) Royal Industries Ltd. v. UOI [2006 (204) 564 (P & H) (v) CC (Prev.) v. Mahendra Singh Purohit [2008 (225) ELT 426(Bom.)] (vi) CCE & C, Nashik v. Krishna Filaments Ltd. [2008 (225) ELT 427(Bom.)] (vii) CC (Prev.), Mumbai v. Aakash Enterprises [2006 (205)ELT 23(Bom.)] (viii) CCE v. Gupta Steel [2006 (205) ELT 24 (Guj.)] (ix) CC(Prev.), Mumbai v. Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom.)] (x) Topland Enginees Pvt.Ltd. v. UOI [2006 (19 .....

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2 (Tri.-Del.)] (xviii) Krishna Das v. CC, Lucknow [2014 (303) ELT 548(Tri.-Del.)] (xix) Directorate of Revenue Intelligence v. Moni [2010 (252) ELT 57 (Del.)] 2.4 That his other clients did not have any knowledge of the goods being of smuggled nature, therefore, no penalties were imposable upon them and vehicle was not liable to confiscation under the Customs Act, 1962. That the Betel Nuts under consideration were legally procured and no penalties upon his clients can be imposed. 3. Shri S.Nath, .....

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ere different from Betel Nuts seized from Truck No.RJ-14-2G-4000. That both the Driver and Khalasi have stated that they never went to Kolkata as there is no permit for going to West Bengal and also that Betel Nuts were loaded from a place named Kuwari. That no entry of Truck No.RJ-14-2G-4000 was found in the records of Sales Tax Office, Dalkhola Check Post. That the bags seized carried the markings COCOA BEANS (Made in Malaysia) which mean seized Betel Nuts of foreign origin were brought to Ind .....

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se of the Revenue that the documents were pertaining to Betel Nuts loaded on a different truck bearing registration No.RJ-2G-4000 and not truck No.RJ-14-2G-4000 as stated by Appellant No.1 and Shri Ratan Kumar Agarwal, Prop. of M/s.R.K.Enterprises, Kanpur and that none of the appellants have claimed the ownership of the goods seized from truck No.RG-14-2G-4000. It is observed from the case records that vehicle bearing Registration No.RJ-14-2G-4000 has been written as follows, at various places i .....

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0. 7. RJ-2G-4000 139 Discussions & findings of Adjudication authority (30.04.2010) 8. RJ-14-26 173 Discussions & findings of Order-in-Appeal dated 25.10.2010. 9. RJ-14-26-4000 173 -do- 4.1 In view of the above errors/omissions committed by the Adjudicating authority, Advocate of the Driver/Khalasi and the first appellate authority it is required to be seen whether truck, mentioned in the documents produced by appellants as RJ-2G-4000, is the same as truck No.RG-2G-4000 as claimed by Appe .....

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ent got delayed due to some mechanical fault and later detained by DRI Authority of Patna near Zero Mile, Purnea. This fact gets corroborated by the statement dated 19.08.2008 of Shri Ratan Kumar Agarwal of M/s.R.K.Enterprises. Shri Aloke Gupta @ Bunty Agarwal of Appellant No.1 in his statement dated 19.08.2008 also stated that the transport company has not given any consignment note to M/s.Bahubali Attraction Pvt.Ltd. and the firm still does not have truck No. on which consignment of Betel Nuts .....

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.RJ-14-2G-4000. That only evidence against Appellant No.1 is the statements of Shri Jagroop Singh and Shi Anil Sharma Driver/owner and Khalasi of truck No.RJ-14-2G-4000, wherein it is stated that they never went to Kolkata as the vehicle does not have permit to go to Kolkata. Appellant No.1 has claimed in their reply to the Show Cause Notice as reproduced in the Order-in-Original that Betel Nuts were sent through truck having registration No.RJ-14-2G-4000 and in the grounds of appeal also it has .....

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d the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore Bench is of the considered opinion that vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000. 4.2 It is also the case of appellant No.1 that vehicles not having permit to enter West Bengal actually enter Kolkata also by .....

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i of vehicle No.RJ-14-2G-4000 cannot be made the sole basis for upholding a case against all the Appellants. Recording of the statements of such Driver/Khalasi becomes more glaring when a Driver/owner brings a consignment of Mustard Oil from Rajasthan and is intercepted by DRI and interrogated for three days before recording his statement. Driver/owner may have thus given a statement which will save his driving licence and source of livelihood. At the same time it is observed that the entire sta .....

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de. The above contradiction in the statement of transporter of Appellant No.1 and the Driver Shri Jagroop Singh clearly brings out that entire story narrated by the Driver/Khalasi, in their statements recorded after interrogation for three days, is not entirely correct. It is now a well accepted legal principle that only a part of the statement, favorable to the department, cannot be considered as acceptable and that the entire statement has to be accepted or rejected. There is no other evidence .....

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