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TMI Blog2011 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 - - - Dated:- 4-5-2011 - Mr. Justice Bhaskar Bhattacharya, Mr. Justice Sambuddha Chakrabarti, JJ. For the Appellant: Mr. N.C. Roy Chowdhury, Mr. P.D. Mukherjee. For the Respondent: Mr. J.P. Khaitan, Mr. Yasin Ali. Bhaskar Bhattacharya, J.: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Being dissatisfied, the Commissioner of Customs (Preventive) has come up with the present appeal. Mr. Roychowdhury, the learned senior counsel appearing on behalf of the appellant, by relying upon the notification under Sections 123 of the Customs Act submitted before us that as per the said notification, fabrics made wholly or mainly of synthetic yarn is a notified item and thus, the Tribunal below wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, indicated at page 44 of the paper book, it appears that the test report indicated that the average thickness of the seized goods was 0.29 mm whereas the invoice shows that the described thickness is 0.26 mm and in this item, there is no variation of thickness indicated. In our opinion, the test report having described the thickness in average and not the exact one, the variation of 0.03 mm is not vital when the genuineness of the bill of entry has not been disputed by the Revenue. It has further been established that the respondent is the owner of the goods as would appear from the documents of transportation itself from the purchasers. Thus, on the basis of the variation of 0.03 mm of thickness appearing from the test report which did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sure about by the real thickness of the seized goods. In order to uphold an order of confiscation on the ground of such a small variation of thickness appearing from the documents produced by the party in support of its claim of lawful entry of the goods in this country, the Customs Authority should either rely upon the exact thickness or the mode of arriving at the figure of average thickness in its report. Otherwise, it can be legitimately contended that the Customs Authority has not dared to give the exact thickness of the goods confiscated lest it is proved to be not smuggled and in order to create a confusion, has deliberately given an average thickness whichis at variance with the declared one although there is no basis of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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