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2016 (5) TMI 175 - CESTAT KOLKATA

2016 (5) TMI 175 - CESTAT KOLKATA - TMI - Imposition of penalties and confiscation of goods in lieu of redemption fine - Seizure of 13 vehicles - Smuggling of Betel Nuts of third country origin and Garlic of Chinese origin goods from Nepal into India - Held that:- there is no retraction of a confession statement. Appellants never asked for cross-examination of witnesses. None of the persons came forward to claim the ownership of seized goods of more than ₹ 2.00 Crore in value. The act of r .....

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have to be considered as the knowledge of the owners of vehicles. The argument of appellant that in the absence of test report of the samples sent, it cannot be said that the seized goods were of foreign origin and that even the department was not sure of that nature, can be taken by the owner of goods who produces some documents of licit acquisition of seized goods. Adjudicating authority has given a logical findings that Garlic of Chinese origin can be easily identified by its size. It is also .....

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Quantum of redemption fine - imposed upon the vehicles of the owners of the vehicles - Appellant contended that value of seizure is arbitrary and the quantum of redemption fine, nearly 50% of seized value, is very high - Held that:- there is substance in the argument of owner appellants that over the period the seized/confiscated vehicles must have deteriorated and that some of the vehicles have been disposed of without giving any intimation to the owners. It is observed that redemption fine imp .....

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an be taken for the purposes of imposing redemption fine on vehicles released provisionally. - Decided partly in favour of appellant - Appeal Nos.CA-68-71 & 76-81/12 - Order No.FO/A/75309-75318/2016 - Dated:- 29-4-2016 - Shri H.K.Thakur, Member(Technical) For the Petitioner : Shri N.K.Chowdhury, Advocate For the Respondent : Shri A.Kumar, AC(AR) ORDER PER SHRI H.K.THAKUR. Following Appeals have been filed by the Appellants against Order-in-Original No.01/CUS/CC/DRI/12 dated 18.01.2012, issued on .....

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6/2012 Smt.Rajwinder Kaur (Owner of vehicle No. MP-09KD-8067) Rs.5.00 Lakhs 6. C-77/2012 Shri Balbeer Singh Butter (Owner of vehicle No. MH-26H-5567) Rs.5.00 Lakhs 7. C-78/2012 Shri Indrajeet Singh Butter (Owner of truck No.MH-20AT-3067) Rs.5.00 Lakhs 8. C-79/2012 Shri Manoj Kumar Gupta (Owner of vehicle No. BR-06G-3650) Rs.5.00 Lakhs 9. C-80/2012 Shri Sohal Singh (Driver/owner of vehicle No. MH-26H-7612) Rs.10.00 Lakhs 10. C-81/2012 Shri Dhiraj Kumar Singh (Owner of Mobile No.9939984288) Rs.1.0 .....

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ks were found loaded with Betel Nuts and two trucks were found to be loaded with Garlic. (ii) That documents recovered from the vehicles indicated that the consignment notes were issued by a single transporter M/s.Shiv Balaji Cargo of Kolkata heaving their local office at Madhubani and the consignor was one M/s.Bhawani Trading Co., Meena Bazar Main Road, Madhubani, Bihar. That the goods were consigned to Ranchi. (iii) That extra registration number plates were also recovered from the vehicles, e .....

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t testing. (vi) That except the statements of above drivers and khalasi there is no evidence of seized goods being of foreign origin brought from Nepal. (vii) That there is no evidence that owners had the knowledge of smuggled nature of seized goods. That even the department was not sure of the foreign origin of seized goods and samples were drawn and sent for testing to ascertain foreign origin. That in the absence of knowledge of the owners of the trucks their vehicles cannot be confiscated an .....

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per stay Order No.S-992-1001/KOL/2012 dated 30.08.2012. That enormous time has lapsed from the date of interception (01.10.2009) of the vehicles and the passing of Order-in-Original dated 18.01.2012 and the vehicles must have become almost scrap. It was his case that redemption fines and penalties imposed upon the drivers and owners are excessive. That due to seizure/confiscation of the vehicles all the appellants have literary come to the roads as their source of livelihood is not available. Th .....

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(Cal.)] (5) Dinanath Maurya [2001 (131) ELT 203 (Tri.-Kolkata)] (6) Sunderlal [2004 (165) ELT 250 (Tri.-Kolkata) (7) Dwarika Pd.Agarwal [2012 (275) ELT 0183 (Pat.)] (8) V.Muniyandi [2004 (167) ELT 215 (Tri.-Chennai)] (9) A.N.Shukla [2005 (187) ELT 269 (Tri-Del.)] (10) Amrit Foods [2005 (190) ELT 433 (SC)] (11) Mohatesham Mohd. Ismail [(2007) 8 Supreme Court cases 254] (12) Francis Stanly Alias Stalin [(2006) 13 Supreme Court cases 210] (13) Prakash Kumar Alias Prakash Bhutto & Othrs. [(2007 .....

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i.)] (xi) Learned Advocate made the Bench go through the case laws mentioned at point (11), (12) & (13) respectively of list at (x) above. 3. Shri A.Kumar, AC(AR) appearing on behalf of the Revenue made following arguments while defending the Order-in-Original dated 18.01.2012 passed by the Adjudicating authority.:- (i) That as per the facts stated in the opening para of the Show Cause Notice dated 24.03.2010 issued to the appellants all the thirteen truck drivers when asked to stop but they .....

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d the covering documents were for Makai as well as Betel Nuts. (iii) That as per statement dated 02.10.2009 of Shri Mukhtiyar Singh, Driver all the bus drivers of the seized vehicles were introduced to one Shri Babloo Singh whose mobile No. was 9939984288 and that he used to follow instructions over this mobile. Learned AR made the Bench go through para 12 of the Show Cause Notice dated 24.03.2010 to argue that, all the mobile numbers of the drivers and mobile numbers 9939984288, 9546689372, .....

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in Patna High Court in 2009. That only on the directions of Economic Offenses Court, Mazaffarpur the owners came forward to give statements. That as per fifth bullet point of para 1.31 of Order-in-Original dated 18.01.2012 Shri Waryam Singh was asked as to why he did not enquire above his truck and file FIR for the period of interception by DRI on 01.10.2009 to third week of December, 2009. That he only replied that he neither enquired nor filed any FIR. (v) That Waryam Singh confirmed to be kn .....

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goods and no one coming forward to claim ownership suggests the smuggled nature of goods. That the mere size of Garlic also makes it evident whether goods are of Chinese/foreign origin or not. (vii) Learned AR also made the Bench go through para 4.01 of the Order-in-Original dated 18.01.2012 to argue that evidences available on record in the form of statements and circumstantial evidences indicate that seized goods were of foreign origin and all the appellants were aware of such smuggled nature .....

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vehicles it was confirmed by AR that some of the confiscated vehicles were disposed of after the Adjudication as no stay order was made available to the department within a reasonable period after adjudication of the case. 4. Heard both sides and perused the case records. The first issue involved in the present proceedings is with respect to penalties imposed upon the appellants under Section 112 of the Customs Act, 1962, who are the Drivers/owners/Khalasi of the 13 vehicles seized by the office .....

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Instead of stopping all the thirteen trucks turned back and sped away. The officers gave a chase and also took the help of Sakri Police Station. Except Shri Mukhtiyar Singh (Driver of truck bearing registration No.HR-37ak 2084), Shri Santokh Singh (Driver of truck bearing registration No.HR-37AK-2073) and Shri Karnail Singh (Khalasi of truck bearing Registration No.HR-37AK-2073), all other occupants of the other vehicles managed to escape leaving their vehicles abandoned on the roadside. 4.1 Shr .....

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number was 9939984288 and all instructions were received over the mobile and that extra registration number plates recovered from his truck were being used to conceal the identity of truck as and when required. Shri Mukhtiyar Singh also confirmed that on earlier occasions also he has carried Betel Nuts from Nepal and every time two sets of documents were provided, one set where consignments were mentioned as Makai and other set where consignments were mentioned as Betel Nuts . Similar corroborat .....

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e vehicles/goods. 4.3 After weighing all the evidences on record Adjudicating authority has correctly appreciated the facts and made the following observations in para 4.01 of the Order-in-Original dated 18.01.2012:- It is noticed that on 30.09.2010 thirteen trucks were intercepted by the officers of DRI on specific information, eleven trucks were found loaded with betel nuts of third country origin and two trucks were found loaded with garlic of third country origin. Sri Santokh Singh, Sri Karn .....

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extra number plates recovered from their trucks were being used to conceal the identity of the truck as and when required: that the actual owner of the betel nuts and garlic loaded on all the trucks is one Murari Gupta, who is actual resident of Indore and is operating the syndicate of smuggling from Nepal: that Murari Gupta alongwith his associates arranges the betel nuts and garlic both of third country origin and Indian trucks for its transportation. It is further observed that these betel nu .....

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el nut and its movement during night hours further raises doubt about its licit procurement, possession and transportation. The physical appearance of entire seized lot i.e. bigger size and spherical shape in contrast to Indian betel nut and garlic which is smaller in size and conical in shape also indicates foreign origin of the betel nut. Also, Madhubani District of Bihar is not known for growing, trading and marketing of betel nuts or Garlic. Moreover, District Madhubani is not directly conne .....

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r proof of illegal transport of goods and show malafide intention on part of the persons involved. The papers produced also contained misdeclaration of goods as maize. Indeed two sets of paper were prepared on declaring the consignment as maize and another as betel nut. The statement of Noticee No.2, 3 and 4 that goods were loaded at Tharhi Bazar, Nepal, also confirms the goods to be of 3rd Country origin and smuggled into India through off route. 4.4 Nobody came forward to claim the ownership o .....

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009. No FIR was filed by the owners to the effect that the drivers have not intimated them about their whereabouts. In the present day mobile age it cannot be imagined that owners of vehicles and drivers will not be in touch with each other during a voyage. Instead of joining the investigation or lodging of FIRs Appellants preferred to approach Patna High Court regarding release of their seized goods and only jointed investigation when directed by Economic Offenses Court, Muzaffarpur. In the lig .....

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the Apex Court s decision in the case of Mohtesham Mohd. Ismail vs. Spl Director, Enforcement Directorate & Another (supra), Francis Stanly Alias Stalin vs. Intelligence Officer, NCB, Thiruvananthapuram (supra) and Prakash Kumar Alias Prakash Bhutto & Others vs. State of Gujarat (supra). Learned Advocate made the Bench go through para - 20 of the case law Mohtesham Mohd. Ismail vs. Spl Director, Enforcement Directorate & Another (supra), which reads as follows:- 20. We may, however, .....

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that in Para-19 of the same case law Apex Court observed it to be a case of retraction of a confession statement. In the present case there are no such retractions. Appellants never asked for cross-examination of witnesses. None of the persons came forward to claim the ownership of seized goods of more than ₹ 2.00 Crore in value. The act of running away of Drivers from the place of interception is not disputed by Appellants. It cannot be imagined that the drivers who ran away would not ha .....

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les sent, it cannot be said that the seized goods were of foreign origin and that even the department was not sure of that nature. This argument can be taken by the owner of goods who produces some documents of licit acquisition of seized goods. Adjudicating authority has given a logical findings that Garlic of Chinese origin can be easily identified by its size. It is also a common experience that in Indian markets Garlic of Chinese origin is easily recognized from indigenous Garlic by its size .....

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