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2015 (5) TMI 733 - HC - CustomsValidity of order of confiscation - procedure to be followed - seizure was initially made by Railway Protection Force and subsequently handed over to the Customs - Whether the order under challenge is bad because the order of confiscation was passed without considering the provisions of Section 125 of the Customs Act - Held that - The object of the legislature appears to be that option shall be given under Section 125 in all those cases where the goods are not within the prohibited list. - With respect to the prohibited goods the officer has a discretion. It is well settled that discretion has to be exercised according to rules of reason and justice - adjudicating authority appear to have been oblivious that they have been vested the discretion in him to be exercised judiciously and honestly - Therefore the order of confiscation is wrong - Matter remanded to Commissioner - Decision in the case of U.P.S.R.T.C vs. Md. Ismail reported in 1991 (4) TMI 437 - SUPREME COURT relied upon - Decided in favour of assessee.
Issues Involved:
1. Whether the Tribunal committed a substantial error of law in holding that the appellant did not properly discharge the burden of proof regarding the seizure of goods. 2. Whether the order of confiscation was passed without considering the provisions of Section 125 of the Customs Act. Issue-Wise Detailed Analysis: Issue 1: Substantial Error of Law in Burden of Proof The primary contention was whether the Customs, Excise and Services Tax Appellate Tribunal erred in law by holding that the appellant failed to discharge the burden of proof. The appellant argued that the seizure was initially made by the Railway Protection Force and subsequently handed over to the Customs, invoking the principle from the Supreme Court case of Gian Chand and Others vs. State of Punjab. According to this principle, the burden of proof that the goods were not smuggled should not rest on the appellant if the seizure was not made under the Customs Act. The Court examined the factual matrix and evidence, including the seizure list and statements made by the appellant. It was found that the goods were seized by the customs officers, not the police, as corroborated by the statements and the seizure list signed by the appellant and customs officials. The Commissioner of Customs (Appeals) and the Tribunal had both consistently found that the goods were seized by customs officers. Thus, the burden of proof under Section 123 of the Customs Act was correctly placed on the appellant, who failed to discharge it. The Court concluded that the Tribunal's finding was justified, and the first question was answered in favor of the respondent/revenue. Issue 2: Consideration of Section 125 of the Customs Act The second issue revolved around whether the order of confiscation was passed without considering Section 125 of the Customs Act, which provides an option to pay a fine in lieu of confiscation. The appellant contended that the authorities were obligated to offer this option since 'gold' was not a prohibited item at the relevant time. The respondent argued that the point was not raised before the Commissioner or the Tribunal and that 'gold' was a restricted item, thus not mandating the option for a fine. The Court examined Section 125, which mandates giving an option to pay a fine for non-prohibited goods and leaves it to the discretion of the officer for prohibited goods. The Court emphasized that any discretion must be exercised reasonably and justly, citing the Supreme Court's guidance in U.P.S.R.T.C vs. Md. Ismail. It found that the adjudicating authority failed to consider this discretion judiciously and did not record reasons for their decision. Consequently, the order of confiscation was deemed incorrect. The matter was remanded to the Joint Commissioner of Customs, Siliguri, to reconsider the question under Section 125 in accordance with the law and after providing an opportunity for hearing to the appellant. The second question was answered in the affirmative and against the Revenue, directing expedited action due to the age of the case. Conclusion: The Court upheld the Tribunal's decision on the burden of proof but found fault with the order of confiscation for not considering Section 125 of the Customs Act. The case was remanded for reconsideration on the latter issue.
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