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TMI Blog2023 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... we do not find any infirmity in the impugned order and the same is upheld. Accordingly, the appeal filed by the Revenue is dismissed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. RAJEEV TANDON, MEMBER (TECHNICAL) Shri M.P. Toppo, Authorized Representative for the Appellant None for the Respondent ORDER The revenue is in appeal against the impugned order, wherein the ld. Commissioner (Appeals) held that the Revenue has failed to prove that the seized goods were smuggled from Nepal. 2. The facts of the case as mentioned in the order of the ld. Commissioner (Appeals) are as under : The proceedings in the instant case was, initiated vide Show Cause Notice C. No. VIII (10)05-Cus/P/H/Seiz/2011/2698-2701 dated 26.3.2012 issued by Assistant Commissioner, Customs (Preventive) Headquarters, Patna upon 1. Shri Rajesh Singh, M/s. Yamuna Trading Company, Dhupguri, 2. Shri Raja Ram, Sfo Shri Durga Prasad, R/o- P.O.+ Vill.-Tanda, P.S. Saini, Distt.-Kausambi, (U.P.), 3. Shri Jay Karan, S/o Shri Kallu R/o- H. No. 81, Sarvoday Nagar, Loharan, Kanpur, (U.P.) and 4. Shri Bhagwan Sharma, S/o Shri Patram, A- 24, Gavde, Uttam Nagar, New Delhi alleging that they had contravened the provisions of Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that, one Shri Rajesh Kumar Singh (Noticee No. 1) also spoke to him on mobile and gave the same direction. He also stated that one Shri Ashok, Proprietor of M/s New Bharat Transport, Siliguri made him talk to Shri Rajesh Kumar Singh on mobile and he was threatened by said Ashok and Rajesh Kumar Singh that if he did not load the betel nut in the truck he will have to face dire consequences. He further stated that the consignment loaded on the said vehicle was owned by Noticee No.1 and that freight @ Rs. 2,200/- per M.T. was negotiated by Noticee no. 4 for which he (the driver) had received Rs. 17,000/- as advance payment. He also stated that the said consignment of betel nut was illegally imported through off-routes of Indo-Nepal border near Kishanganj and was loaded in the said vehicle at a place located on the roadside near Falakata. He also admitted that he along with the Khalasi of the said vehicle (Noticee No.3) attempted to escape interception of the vehicle by speeding away but could not succeed, 5. Shri Jay Karan (Noticee No.3) in .his statement recorded under Sect 107 and Section 108 of the Customs Act, 1962 on 11.11.2011 stated that he was working as Khalasi of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in presence of two independent witnesses. Also three representative samples of intercepted TOO betel nuts were drawn, sealed in three different packets in presence of two independent witnesses and were duly signed them. 8. The culpability of the driver and the khalasi appeared prima facie apparent in the transportation of the contraband betel nuts and accordingly they were put under arrest under Section 104 of the Customs Act, 1962 and forwarded to the Special Judge(Economic Offence), Economic Offence Court, Purnea on 11.11.2011 who further remanded them to judicial custody. 9. Summons under Section 108 of the Customs Act, 1962 were issued on 30.11.2011, 19.12.2011 and 03.02.2012 to Noticee No.1 and on 19.12.2011, 11.01.2012 and 03.02.2012 to Noticee No.4 for recording their statement or producing any documentary evidence in their defence but they failed to appear on all the three occasions and thus willfully defied the summons and the process violated the provisions of Section 174 Section 175 of the Indian Penal Code, 1860. 10. Ownership verification of the seized vehicle was done through the District TransportOfficer, Faridabad, who vide his letter No. 250 dated 28.12.2011 confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 1200/-. He further stated that Shri Nand Kishore Indoria was originally a Munshi at a Kirana Store and that he had never opened a shop and only a board displaying Laxmi Roadways Company, Jhankar More, Burdhwan Road, Siliguri has been hanging there for last three months. The said Mr. Indoria could not be found at his residence when the investigating team reached. 13. It has been further mentioned in the investigation report that when the Forbesganj Customs investigating team reached Natun Para P.O. Dhupguri, Dist.-Jalpaiguri at the given address neither the office of M/s. Yamuna Trading Company nor its proprietor, Mr. Rajesh Singh was found. Finally, the investigating team went to the office of Uttar Banga Khudra Pat Supari Bhusimal Babosayee Samiti , Dhupguri Unit, Gairkata Road, Dhupguri- a unit of 400 (four hundred) registered members of the traders of betel nut (Supari). The Secretary of the said Samiti stated that Shri Rajesh Singh, Proprietor of M/s Yamuna Trading Company was not a member of their Samiti and in his knowledge no Rajesh Singh was working as a betel nut trader. The investigating team also went to Rabindranagar at Dhupguri where Shri Anshu Deb Guha, S/o Late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that no godown could be found in the name of M/s. Yamuna Trading Company. Further, the Stock Register of the firm obtained from the Sales Tax Office showed no sale or purchase before 01 07.2011 and after 10.11.2011 and even during the period for which the Stock Register was submitted i.e. 01.07.2011 to 10.11.2011 (the date on which the betel nuts were seized) one only finds the firm purchasing the betel nuts and very minuscule quantity was issued or sold during this period. It is difficult to justify how such a huge quantity was being stored without any facility of a godown it is indicative of the fact that Stock Register was fabricated as an afterthought and in fact no such purchase was made during that period and the seized betel nuts were essentially contraband. 18. A request was made to the Branch Manager, Bank of India, Dhupguri Branch vide letter dated 03.02.12 to furnish the details about the financial transactions through the Bank Alc no. 435320110000069, which Shri Rajesh Singh has claimed to be the official Account of the firm in the petition filed before the Hontble High Court. The details furnished by the Branch Manager vide his R'ef. no. DHUPISBI/11-12 dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 7,50,000/- on execution Bond for the full seizure value and deposit of Bank Guarantee Rs. 55/- per kg. in case of the seized goods and Rs. 2,00,000/-for the seized vehicle. 22 .. The Li Adjudicating Authority observed that:- (i)It is observed from the seizure records and Show Cause Notice that the officers of Customs Hdrs. Preventive Branch, Office of the Commissioner of Customs (Prey.), Patna had on 10.11.2011 received a specific information that a consignment of betel nut of third country. origin (TCO), allegedly brought illegally in to India from Nepal through off-routes, was being transported on a truck bearing Registration No. HR-381V1/8767 via Kishanganj on its way to destination at Delhi. Thereafter, a team headed by Assistant Commissioner, Customs (Prey.) Hqrs., Preventive Branch, Patna rushed to N.H. 31 at Kishangani. The team located the said vehicle at about 05.00 A.M. of 11,11,2011 and intercepted it after a hot chase. On examination, the vehicle was found loaded with betel nuts of third country origin weighing 15,732 Kgs. valued at Rs. 12,58,560/-, The driver of the vehicle (Noticee No. 2) did not produce any documents related with the transport of the consignment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma (Noticee No. 4) over mobile phone to load the betel nut of third country origin from a compound located at Falakata Road at NH 31 for onward transportation to the consignee at New Delhi. They further stated that the fare for transportation was fixed @ Rs. 2,200/- per M T. by Noticee No. 4 and that an advance of Rs. 17,000/- was received by them from Noticee no. 1. It is also observed that the Noticee No. 4 had not appeared before investigating team, despite summons were issued to him, and also before the adjudicating authority, which proves his malafide intention. (v) It is further observed that the investigating team of Customs (Prev.) Division, Forbesganj found the office premises of M/s Laxmi Roadways Company-transport agency owned by Noticee No.4 and the carrier of the seized goods at Jhankar More, Bardhwan Road, Siliguri to be closed. They gathered that the said premises belonged to one Md.Nazir Khan, resident of Jyoti Nagar Colony, Bardhwan Road, Siliguri, who showed a tenancy agreement made between him and one Shri Nand Kishore Indoria, S/o Late Ghasi Ram Indoria, Ganga Nagar S.M.C. Ward No.V, P.O. + P.S.- Siliguri,Dargeeling. Md.Nazir Kham in his voluntary statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm that on some occasion several Metric Tonnes of betel nuts shown there in possession of M/s Yamuna Trading Company but on investigation no premises could be found where such a big quantity of betel nuts continuously collected for several days could he stored. It is apparent that the firm was engaged in collection of Smuggled goods at one place and from where they were loaded and dispatched to their destination, ( viii) It is observed that the Forbesganj Customs (P) team in their investigation report submitted that no godown could be found in the name of M/s. Yamuna Trading Company. Further. the Stock Register of the firm obtained from the Sales Tax Office showed no sale or purchase before 01.07.2011 and after 10.11.2011 and even during the period for which the Stock Register was submitted i.e. 01,07.2011 to 10.11.2011 (the date on which the betel nuts were seized) the firm had shown very minuscule quantity of betel nuts as sold during this period, it is difficult to comprehend as to how such a huge quantity of betel nuts was being stored without any facility of a godown, it is indicative of the fact that the Stock Register was fabricated as an afterthought and in fact no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was being financed through black money for which no book keeping of the financial transaction was maintained. (xiii) It is observed from the Sales Tax Registration Certificate issued to M/s. Yamuna Trading Company under the West Bengal Value Added Tax and Rules stipulated that it was authorized to purchase betel nuts only for resale in West Bengal. The requisite documents for permission for interstate trade under the Central Sales Tax (West Bengal) Rules, 1958 was not submitted by the firm before the Authorities. Whereas, the goods in question has been seized in Kishanganj which is a place situated in Bihar and not in West Bengal. Also, the Form 1 submitted by the firm under Rule 8 of the Central Sales Tax (West Bengal). Rules,1958 submitted before the Sales Tax Authority Nil Return. It may well be inferred that the Sales Tax Registration is just a prop./fa ade for camouflaging smuggling of betel nuts. (xiv) It is further observed that the seized goods were loaded near Kishanganj which has been specified as an area vulnerable to smuggling under Section 11H of the Customs Act, 1962. Kishanganj is very close to the Indo Nepal border, and has porous and easily passable off-route ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ize in contrast to the betel nut of Indian origin which is conical in shape and smaller in size. This fact is also indicative of the contention that the seized betel nuts were of third country origin. (xix) It is observed that the Notice No.1 had consciously and knowingly engaged in the smuggling of goods of third country origin, brought through off-routes of Indo Nepal border and has engaged in illegal import, acquiring, possession, storing, carrying/transporting and selling to the buyers. Further, he deliberately availed appearing before the investigation and did not co-operate with the investigation in spite of three summons issued to him. Noticees No.2 3 have also stated in their respective statements recorded under Section 107 and Section 108 of the Customs Act, 1962 on 11.11.2011 that the seized goods was loaded at the behest of the owner of the vehicle, Shri Bhagwan Sharma (Noticee No.4) and Sri Rajesh Singh (Noticee No.1). Noticee No. 2 3 in their statement dated 11.11.2011, have also admitted that the said goods were brought from Nepal into India through off-routes of Indo Nepal Border by way of smuggling. Further, the investigation has brought out the fact that the firm o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration as per the direction given by Noticee No.4, owner of the vehicle. These statements have not been retracted till date and are admissible piece of evidence. (xxiii) It is also observed that Noticee No.4 (the claimant of the vehicle) neither appeared before the enquiry officer to record his statement even after issuance of three summons nor he ever filed any defence reply or appeared in any of the three opportunities granted to him for personal hearing. This indicates that he was involved in the act of smuggling of the alleged third country betel nut. (xxiv) It has already been held above that the seized goods loaded on the seized vehicle were contraband in nature and were liable for confiscation under Section 111 (b) and 111 (d) of the Customs Act,1962. As the seized goods were loaded on the seized vehicle in conscious knowledge of the owner as wel as persons in charge of vehicle, it is held that the seized vehicle i.e. truck bearing Registration No.HR-38M/8767 valued at Rs.7,50,000/- is liable for confiscation under Section 115 (2) of the Customs Act,1962. (xxv) In view of the discussions made above, it is established that Noticee No. 1,2,3 and 4 have connived in close co-o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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