Decided on February 12,1986



S.Kalyanam, - (1.)THIS appeal, filed by the Collector of Customs & Central Excise, Trichy, is directed against the order of the Collector of Customs (Appeals), Madras, dated 1-2-1985 setting aside the order of the Assistant Collector of Central Excise, Customs Division, Nagapattinam dated 31-8-1982 exonerating the respondent herein of the charge under Section 113 (d) of the Customs Act, 1962 hereinafter referred to as the Act.
(2.)The respondent herein were proceeded against as per law in respect of a seizure of a consignment of 540 numbers of sarees valued at Rs. 21.600/-, effected on 5-12-1981 at about 7.30 P.M. at the Office of Southern Roadways Limited, Pattukottai (Thanjavur Dist). The Assistant Collector of Central Excise, Nagapattinam, who originally adjudicated the matter, absolutely confiscated the goods under seizure and imposed a penalty of Rs. 10.000/- under Section 114 of the Act by his order dated 31-8-1982 against which the respondent herein preferred an appeal to the Collector of Customs (Appeals), Madras, which was allowed by order dated 22-12-1981 in No. C24S/127/82 as against which the Department preferred an appeal before the Tribunal in Appeal No. CD/267/83. The Tribunal by order dated 19-8-1983 remitted the matter back to the Collector of Customs (Appeals) for disposal in the light of the observations contained in the order of the Tribunal and particularly with reference to the applicability of the first part of Section 113(d) of the Act referring to "any goods attempted to be exported". On remand the Collector of Customs (Appeals) allowed the same in favour of the respondent herein against which the Department has again come by way of appeal before the Tribunal.
Shri K. K. Bhatia, the learned SDR appearing for the appellant submits that under the impugned order the Collector of Customs (Appeals) has placed reliance on books and accounts of Ashiq Trust and the respondents relating to the supply of textiles to Maharani Silk Palace, Pattukottai and Ragini Silk Palace on regular basis, besides delivery memo books and way bills and books of accounts showing the pattern of sale. The learned SDR urged that under the impugned order not only the above said evidence has been received by the appellate authority at the request of respondent herein but reliance has also been placed without the Department being afforded an opportunity of being heard. The learned SDR drew my attention to Rule 5 of the Customs (Appeals) Rules, 1982 and contended that the Collector of Customs (Appeals) shall not take any evidence produced under Sub-rule 1 of Rule 5 of the Customs (Appeals) Rules, 1982 unless the adjudicating authority or the officer authorised in his behalf by the said authority has been allowed a reasonable opportunity to examine the evidence and produce any evidence in rebuttal thereof. Therefore the SDR urged that non-compliance with the mandatory provisions of Rule 5(3) of the Customs (Appeal) Rules, 1982 would vitiate the impugned order appealed against.

(3.)SHRI Kothari, the learned counsel for the respondent herein contended that the additional evidence relied upon under the impugned order cannot be said to cause any prejudice to the department and at any rate the appellate authority even in terms of Sub-rule 4 of Rule 5 of the Customs (Appeal) Rules, 1982 would be entitled to direct production of any documents or examination of any witness for just and proper disposal of the appeal before him. The learned counsel further submitted that the only issue that had to be decided by the appellate authority consequent on the order of the remand by the Tribunal was to consider the scope of first part of Section 113(d)of the Act and reach a finding as to whether the circumstances would bring the respondent within the mischief and ambit of the expression "attempted to export" under Section 113 (a) and (b) of the Act. Therefore even if reliance had been placed under the impugned order on the evidence tendered by the respondents the same would be relevant only for the limited purpose of ascertaining the bona fides of the respondent and will in no way affect the legality of the finding reached on other evidence as well.

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