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TMI Blog2014 (9) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap and the opinion expressed by M/s Gohania Engineering Works, Kheri was merely an opinion was not definite and is on presumption. The order of the tribunal can not be allowed to stand and is liable to be set aside and the matter be remitted to the Appellate Tribunal for decision afresh with the direction that the appeal be decided afresh in the light of the evidence on record and the observations made in this judgment. - matter remanded back - Decided in favor of revenue. - First Appeal From Order No. - 106 of 2006 - - - Dated:- 4-9-2014 - Hon'ble Rajiv Sharma And Hon'ble Mahendra Dayal,JJ. For the Appellant : Dipak Seth, Rajesh Singh Chauhan, Sunil Sharma For the Respondent : D. R. Misra, R.S.Tripathi,Rakesh Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igin. On the basis of reasonable belief that the said copper scrap was being imported into India from Nepal the three accused, namely, Baijnath, Ahsan ( driver of the truck ) and Rizwan Ahmad (cleaner of the truck) were arrested under Section 104 of Customs Act, 1962. The truck was also seized. The seized truck was hired by Idris of Behraich from Mihipurwa Jungle to Kanpur on payment of ₹ 3,200/-. At the time of loading of the truck, Ahsan and Idris were accompanied by Rizwan, Baijnath, Pitamber Seth and Idris . On the basis of material, a show cause notice was issued to the respondents in this appeal to which they submitted reply, but since their reply was not found satisfactory an order was passed by the Joint Commissioner Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hd. Ujair, the proprietor of M/s Khan Scrap Traders Nanpara whose statement was recorded under Section 108 of the Customs Act has stated that the truck had to make two rounds of Kanpur same day and that is why he prepared two bills number 18 and 19 both dated 25.07.2001. Since he had to go out of station, he instructed his Munshi that on return of the truck after first round, the second bill be given after loading the iron scrap, whereas another respondent Mohd. Fareed, who is the owner of the truck, in his statement told that the driver of the truck Ahsan informed him on phone on 25.07.2001 itself that a consignment of Kanpur was available for ₹ 2,200/- and thereupon he instructed the driver to undertake the trip with proper document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Appellate Tribunal has failed to take into consideration the statement of Mohd. Ujair recorded under Section 108 of the Customs Act and the statement of Mohd. Fareed the owner of the truck from which it was established that the bills were subsequently prepared in order to cover up the illegal transportation of the copper scrap and the opinion expressed by M/s Gohania Engineering Works, Kheri was merely an opinion was not definite and is on presumption. In the aforesaid circumstances, we find that the impugned order can not be allowed to stand and is liable to be set aside and the matter be remitted to the Appellate Tribunal for decision afresh with the direction that the appeal be decided afresh in the light of the evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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