COMMISSIONER OF CUSTOMS (PREVENTIVE) Vs. TARARAM PRAJAPATI
LAWS(BOM)-2012-6-150
HIGH COURT OF BOMBAY
Decided on
June 25,2012
COMMISSIONER OF CUSTOMS (PREVENTIVE)
Appellant
VERSUS
Tararam Prajapati
Respondents
JUDGEMENT
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(1.)This appeal is filed against the order dated 30th December, 2004 passed by the Central Excise and Service Tax Tribunal, Western Regional Bench at Mumbai,2005 191 ELT 179 (Tribunal)] raising the following two questions of law.
(A) Whether in the facts and circumstances of the case and in law, the Hon'ble CESTAT, Mumbai, erred in interpreting the provision under Section 123 of the Customs Act, in light of which the Dept. has adequately disagreed the burden of proof cast upon it in case of import of non notified goods particularly in view of the clear admission of the Respondent herein, recorded under Section 108 of the Customs Act, inter alia establishing the offence of smuggling the said goods into India. In that event, whether the findings of the Hon'ble CESTAT, inter alia setting aside the confiscation of the said goods is justified in law.
(B) Whether in the facts and circumstances of the case and in law, the Hon'ble CESTAT was justified in holding that the Dept. failed to produce any tangible, positive evidence to prove that the goods were smuggled into India, despite the clear admission of the Respondent herein, recorded under Section 108 of the Customs Act, in support of the said fact of illegal importation into India, thereby violating the provisions of the Customs Act and Foreign Trade (Regulation and Development) Act, 1992.
On perusal of the order of CESTAT which is impugned in this appeal, it is seen that the CESTAT has merely quoted the reasoning given by the Commissioner of Customs (Appeals) and has not given any independent finding as to whether the Tribunal has agreed with the reasoning given by the Lower Appellate Authority or not. In the absence of any prima facie view expressed by the CESTAT regarding the correctness of the order passed by the Lower Appellate Authority, it is difficult to sustain the order of CESTAT. In the result, the impugned order of CESTAT is quashed and set aside and the matter is restored to the file CESTAT for fresh consideration in accordance with law.
(2.)The appeal is accordingly disposed of with no order as to costs.
(A) Whether in the facts and circumstances of the case and in law, the Hon'ble CESTAT, Mumbai, erred in interpreting the provision under Section 123 of the Customs Act, in light of which the Dept. has adequately disagreed the burden of proof cast upon it in case of import of non notified goods particularly in view of the clear admission of the Respondent herein, recorded under Section 108 of the Customs Act, inter alia establishing the offence of smuggling the said goods into India. In that event, whether the findings of the Hon'ble CESTAT, inter alia setting aside the confiscation of the said goods is justified in law.
(B) Whether in the facts and circumstances of the case and in law, the Hon'ble CESTAT was justified in holding that the Dept. failed to produce any tangible, positive evidence to prove that the goods were smuggled into India, despite the clear admission of the Respondent herein, recorded under Section 108 of the Customs Act, in support of the said fact of illegal importation into India, thereby violating the provisions of the Customs Act and Foreign Trade (Regulation and Development) Act, 1992.
On perusal of the order of CESTAT which is impugned in this appeal, it is seen that the CESTAT has merely quoted the reasoning given by the Commissioner of Customs (Appeals) and has not given any independent finding as to whether the Tribunal has agreed with the reasoning given by the Lower Appellate Authority or not. In the absence of any prima facie view expressed by the CESTAT regarding the correctness of the order passed by the Lower Appellate Authority, it is difficult to sustain the order of CESTAT. In the result, the impugned order of CESTAT is quashed and set aside and the matter is restored to the file CESTAT for fresh consideration in accordance with law.
(2.)The appeal is accordingly disposed of with no order as to costs.
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