A Raghavamma v. A Chenchamma, CESTAT, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Customs 68 Of 2009

Attorney(S)

Acts

Rule 27 of the CESTAT(Procedure) Rules, 1982
SECTION 123 CUSTOMS ACT

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Smart Summary

Factual and Procedural Background

Twelve appeals were filed against a common impugned order involving the confiscation of scrap valued at Rs.4,88,180.00 and the vehicle carrying it, both ordered to be confiscated but redeemable upon payment of redemption fines. Personal penalties were also imposed. The Revenue alleged that the scrap was smuggled into India. The appellants contested the confiscation and penalties, arguing that the scrap was neither notified nor prohibited goods under the Customs Act and that the Revenue failed to prove the scrap was smuggled. The appeals were heard together by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

Legal Issues Presented

Whether press reporters may be allowed to see the order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
Whether the order should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report?
Whether the Vice-President wishes to see the fair copy of the order?
Whether the order is to be circulated to the departmental authorities?
Whether the scrap in question is smuggled goods liable for confiscation and penalties under the Customs Act?
Whether the burden of proof lies on the Revenue to establish smuggling of the scrap?

Arguments of the Parties

Appellants' Arguments

The scrap is not notified goods under Section 123 of the Customs Act, thus the burden to prove smuggling lies on the Revenue.
The scrap is not prohibited goods under the Customs Act.
The Revenue failed to discharge the burden of proof that the scrap was smuggled into India.
The appellants are registered traders with Panchayat Authorities and produced certificates to that effect before the lower authorities.
Relied on precedents from the Calcutta High Court: CC(Prev.), WB, Kolkata vs. Ritu Kumar and CC (Prev.), WB, Kolkata vs. Raj Kumar Jaiswal.

Revenue's Arguments

The scrap appears to be ship-breaking scrap, with inscriptions such as "Republic of China" on some pieces, suggesting smuggling into India.
Based on the Recovery Memo, the scrap is liable for confiscation as smuggled goods.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
CC(Prev.), WB, Kolkata vs. Ritu Kumar, 2006 (202) ELT 754 (Cal)	Burden of proof lies on the prosecution/revenue in criminal prosecution involving non-notified goods.	The court relied on this precedent to hold that the Revenue must prove that the scrap was smuggled, which it failed to do.
CC (Prev.), WB, Kolkata vs. Raj Kumar Jaiswal, 2006 (204) ELT 561	Burden of proof in smuggling cases remains on the Revenue for non-notified goods.	Supported the court's finding that the Revenue did not discharge the burden of proof regarding smuggling.
A. Raghavamma v. A. Chenchamma, A.I.R. 1964 SC 136	Distinction between burden of proof and onus of proof in criminal law.	Clarified the legal principle that burden of proof never shifts, reinforcing the court's reasoning on proof requirements.

Court's Reasoning and Analysis

The court observed that the scrap was neither prohibited nor notified under Section 123 of the Customs Act, placing the burden of proof on the Revenue to establish smuggling. The court noted the absence of evidence proving smuggling. It relied on authoritative precedents from the Calcutta High Court and the Supreme Court to clarify that the burden of proof in such criminal prosecutions does not shift from the prosecution. The court distinguished between the burden of proof and onus of proof, emphasizing that the Revenue failed to discharge its burden. Consequently, the impugned order of confiscation and penalties was set aside.

Holding and Implications

The appeals are allowed and the impugned order is set aside.

The direct effect of this decision is the reversal of confiscation of the scrap and vehicle as well as the personal penalties imposed on the appellants. The appellants are entitled to consequential relief in accordance with law. No broader precedent beyond the application of established principles on burden of proof in smuggling cases was set by this decision.

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A Raghavamma v. A Chenchamma

FOR APPROVAL AND SIGNATURE SHRI S.S.KANG, HONBLE VICE-PRESIDENT

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether His Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities? =============================================================

1) SHRI UTTTAM GHOSH

2) SHRI BISWAJIT GHOSH

3) SHRI MIHIR KR. SAHA

4) SHRI MEGHNATH GHOSH

5) SHRI PRADIP KR. SAHA

6) SHRI SANKAR DEBNATH

7) SHRI RAFIQUL SEIKH

8) SHRI NITISH SAHA

9) SHRI SAMSUL HAQUE 10) SHRI ARSELIM SEIKH 11) SHRI MUKULESHWAR RAHAMAN 12) SHRI ABDUL MOMIN APPELLANTS VERSUS COMMISSIONER OF CUSTOMS (PREV.), WEST BENGAL, KOLKATA RESPONDENT(S) APPEARANCE: SHRI ARIJIT CHAKRABORTY, ADVOCATE FOR THE APPELLANTS; SRI A.K.SHARMA, J.D.R. FOR THE RESPONDENTS. CORAM: SHRI S.S.KANG, VICE PRESIDENT DATE OF HEARING/ DECISION: 29.07.09 Per SHRI S.S.KANG Heard both sides. These twelve Appeals are filed against a common impugned Order. Therefore, they have been taken together.

2. The Appellants filed these Appeals against the impugned Order whereby the scrap valued at Rs.4,88,180.00 was confiscated on payment of redemption fine and the vehicle carrying the scrap was also ordered to be confiscated and allowed to be redeemed on payment of redemption fine and personal penalties were imposed. The case of the Revenue is that the scrap in question is smuggled into India.

3. Contention of the Appellants is that the scrap is not notified goods under Section 123 of the Customs Act. Therefore, the burden is on the Revenue to show that the same is smuggled into India. It is also submitted that the scrap is not prohibited goods under the Customs Act. Hence, as the Revenue failed to discharge its burden to show that the scrap in question is smuggled into India, the Order confiscating the scrap and vehicle and imposing penalties is not sustainable. The Appellants have relied on the decision of the Honble Calcutta High Court in the case of CC(Prev.), WB, Kolkata vs. Ritu Kumar reported in 2006 (202) ELT 754 (Cal.) and the decision in the case of CC (Prev.), WB, Kolkata vs. Raj Kumar Jaiswal reported in 2006 (204) ELT 561. It is also submitted that the claimants of the scrap are registered as traders with the Panchayat Authorities. Certificates in this regard were produced before the Lower Authorities.

4. Contention of the Revenue is that the scrap in question seems to be of ship-breaking scrap and as per the Recovery Memo, some inscription like Republic of China was also on some pieces. Hence, as the scrap was smuggled into India, therefore is liable for confiscation.

5. I find that the scrap is not a prohibited item and also not notified under Section 123 of the Customs Act. Therefore, the burden of proof that the same has been smuggled into India, is on the Revenue. In the present case, there is no evidence on record to show that the scrap in question is smuggled into India. The Honble High Court in the case of Ritu Kumar (supra) held as under:- 8. It is now settled law that burden in a criminal prosecution in the absence of any special protection given in any statute is always upon the prosecution. The goods in question being non-notified one, the burden is upon the revenue. Onus of proof is different from the burden of proof and we should not confuse the term onus with burden. Burden of proof lies upon the person who has to prove a fact and it never shifts but the onus is shifted at every stage in the process of evaluation of evidence. (See A.Raghavamma v. A.Chenchamma reported in A.I.R. 1964 SC 136;). The same view is taken by the Honble High Court in the case of Raj Kumar Jaiswal (supra). As in the present case, the burden was not discharged by the Revenue that the scrap in question is smuggled into India, therefore the impugned Order is set aside and the Appeals are allowed. The Appellants are entitled for consequential relief, if any, in accordance with law. Pronounced and dictated in the open court. Sd/- (S.S.KANG) VICE-PRESIDENT

A Raghavamma v. A Chenchamma

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Revenue's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A Raghavamma v. A Chenchamma

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