- (1.) This appeal under Section 130 of the Customs Act, 1962 is at the instance of the Commissioner of Customs (Preventive) West Bengal, and is directed against an order dated 14th October, 2009, passed by the Customs, Excise and Service Tax, Appellate Tribunal, East Regional Bench, Kolkata, in Appeal No.157 of 2009 by which the said Tribunal set aside the order of Commissioner of Customs of Confiscation and penalty. Being dissatisfied, the Commissioner of Customs has come up with the present appeal.
(2.) A Division Bench of this Court at the time of admission of this appeal formulated the following substantial question of law: "Whether the learned Tribunal erred in law in not considering the Test Report though admittedly submitted before it while passing the impugned judgment and order?"
(3.) The facts giving rise to filing of this appeal may be summed up thus: a) M/s. Heera Sales Corporation, the respondent before us, filed an appeal before the Tribunal below against the order of the Commissioner of Customs (Preventive) West Bengal, by which the said Commissioner of Customs imposed the penalty of Rs.2,00,000/- and also confiscated 20 consignments of fabric belonging to the said respondent by disallowing the claim of ownership. b) On 5th March, 2008 certain consignments of fabrics were seized from the godown of one Inland Road Transport at Kolkata on the ground that those were illegally imported to India c) The respondents claimed the fabric covered under 20 consignments notes which they allegedly purchased from Mapasa Tapes Pvt. Ltd. and Global Overseas under 34 invoices. During investigation, the Revenue collected the bills of entry from the original importer regarding the import of those goods who sold the consignments to the present respondent. d) According to the respondent, the goods were PVC quoted fabrics and the same were not notified goods under Section 123 of Customs Act and thus, the burden of proof that the same was smuggled to India was on the Revenue. e) The Commissioner of Customs (Preventive) came to the conclusion that the Transporter was bound to verify contents of consignment and also genuineness of the names and addresses of the consignor and the Transporter could not evade its responsibility for abetting such crime and thus, came to conclusion that the Transporter did not maintain proper records with the object of bringing the investigation to a dead end and consequently, the order of confiscation of the goods were passed. So far the respondent is concerned, they appeared before the Commissioner of Customs (Preventive) and produced documents in support of their claim that 240 rolls of Mapasa Brand fabric were owned by them as would appear from 34 purchase bills/invoices showing ownership in respect of 20 consignments. They further claimed that they procured the goods from M/s. Global Overseas and Mapasa Tapes Pvt. Ltd. against genuine consignment notes for transportation to Kolkata. They also expressed their doubts of variances of thickness between test report and bills of entry. f) Being dissatisfied with the order of confiscation and imposition of penalty, the respondent preferred an appeal before the Tribunal below and by the order impugned herein the said Tribunal had set aside the order passed by the Commissioner of Customs (Preventive) with a finding that PVC quoted fabrics were not notified goods under Section 123 of the Customs Act and, therefore, the burden of proof to show that those fabrics were smuggled to India was on the Revenue. It was further held that the goods recovered from the Transport Company were not prohibited goods and the burden of proof that those were smuggled to India was not discharged by Revenue and thus, those were not liable for confiscation on the ground that the same was smuggled to India. According to Tribunal below, the respondent proved ownership of the goods on the basis of invoices under which those were purchased and the corresponding consignment notes over the goods were booked in the name of the respondent. The Tribunal further held that invoices were verified by the Revenue and those were found to be genuine and the consignment notes were available on 7th March, 2008 as would be evident from the inventory of seized goods by the Revenue Officers. It was further held that the evidence collected from the Transport Company also had shown that the goods were booked in the name of the respondent. In view of such circumstance, the order of confiscation was set aside and direction was given for release of the goods.;