- (1.) This appeal has been filed by the appellant who is the heiress and legal representative of one late Amal Kumar Ghosh against the judgment and order of the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to CESTAT) dated 4th July, 2003, passed in 1-5. Appeal Nos:CSM-11A, 12-15/ 2003 arising out of order in Appeal Nos. Prev.Cus.174-178/2002 dated 9th October, 2002 passed by the Commissioner of Customs (Appeals) Kolkata.
(2.) By the impugned judgment and order five several appeals preferred by five several persons namely, appellant herein, one Bidyut Karmakar, one Saheba Bhonsle, one Abhijit Saha and one Ashok Agarwal were disposed of. Out of the aforesaid five appellants only the appellant before us has impugned this judgment and order. This Court on 21st September, 2005 admitted the instant appeal on the following substantial question of law:- "Whether on the facts and in the circumstances of the case, the order of the Appellate Tribunal upholding the confiscation of bars, without any foreign mark is, perverse and contrary to Central Board of Excise and Customs Circular No.394/233/88-letter dated 11th June, 1990?"
(3.) Thus the point for decision which has fallen for consideration is very restrictive in sense. In order to appreciate the matter the short fact as it appears on perusal of the papers placed before us is shortly put hereunder:- On 6th February, 1996 two persons namely one Abhijit Saha and Sri Bidyut Karmakar as mentioned above were personally searched while they were travelling from Siliguri to Coochbihar by a Bus and on search by the custom official it was found that Silver bars were concealed in the specially made jackets owned by the said two persons. The said officials seized those silver bars on the reasonable belief that the same have been illegally imported into India. Samples of the seized bars were drawn and sent to Chemical Examiner, Customs House, Calcutta who submitted report on 25th June, 1996, opining that the said seized silver bars contained 99.8% of silver by weight. Immediately after search Abhijit Saha made a statement on 7th February, 1996 before the Customs officials to the effect that he was working for one Sri Ashok Kumar Agarwal who has a shop named as Goel 7 Sons, Siliguri. The said Sri Ashok Agarwal took him and one Sri Bidyut Karmakar to Nepal where he gave them the silver bars for concealing the same in the specially tailored jacket. They were asked by the said Agarwal to carry the said silver to Siliguri and to deliver the same to one Saheba Bhonsle. He also confessed that he has brought silver from Nepal on earlier occasion and also for Sri Ashok Kumar Agarwal and has delivered the same to Saheba Bhonsle and in exchange for the same he used to bring gold bars from Sri Saheba Bhonsle and delivered the same to Ashok Kumar Agarwal. Their remuneration for the said job was paid by Sri Ashok Agarwal. The said Bidyut Karmakar who was one of the detained persons was also made similar statement. Based on the aforesaid statement the said Ashok Kumar Agarwal and Sri Saheba Bhonsle were interrogated. However, they denied the statements made by the said Abhijit Saha and Bidyut Karmakar. They also denied having any connection with the seized silver. Thereafter, the Department issued a notice to show cause dated 11th November, 1996 proposing to confiscate seized silver bar and to impose personal penalties upon various persons including aforesaid four persons. The said Sri Bidyut Karmakar while giving reply to the said notice and in support thereof produced a xerox copy of an affidavit dated 20th March, 1996 stating that he was employee of one Sri Amal Kumar Ghosh of Coochbehar and he and Sri Abhijit Saha went to Siliguri market along with the silver bars for sale of the same. As they could sell the said materials, they were bringing the same back to Coochbehar when they were intercepted by the customs officers. Therefore, for the first time in the reply aforesaid story of involvement of Amal Kumar Ghosh was made out. But Amal Kumar Ghosh was served with any show cause notice. Amal Kumar Ghosh, since deceased filed a writ petition wherein it was claimed that those silver bars belong to him as being the owner and without giving any hearing no confiscation order could be passed. This Court passed an order directing the Customs Authorities to hear Amal Kumar Ghosh. Therefore, the proceedings were initiated against all those five persons namely Amal Kumar Ghosh (since deceased), Bidyut Karmakar, Saheba Bhonsle, Abhijit Saha and Ashok Kumar Agarwal. After hearing the order was passed by the Commissioner of Customs and decided to confiscate the silver absolutely and imposed penalty on various persons. An appeal was preferred against the said order (hereinafter the initial order) to the Tribunal but on hearing the appeal the learned Tribunal remanded the matter to the Commissioner of Customs (Appeals) with direction to consider the appellant's plea afresh. After hearing afresh the Commissioner of Customs (Appeals) passed fresh order confiscating the silvers and also imposed penalty.;