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2013 DIGILAW 58 (KAR)

Commissioner of Customs v. Akram M. D.

2013-01-09

B.MANOHAR, D.V.SHYLENDRA KUMAR

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JUDGMENT D.V. Shylendra Kumar, J.—This is an appeal by the Commissioner of Customs under Section 130(1) of the Customs Act, 1962 against the order dated 4-3-2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in Appeal C. No. 76/2003. Appellant has raised the following questions for examination in this appeal: 1. Whether Tribunal was correct in holding that there is no burden on the person in possession of goods with foreign markings without any valid documents since they are not notified goods under Section 123 of the Customs Act, 1962? 2. Whether the Tribunal has committed error in setting aside the order of the adjudicating authority dated 22-3-2002 as also the order of the Appellate Authority dated 15-9-2003? 3. Whether Tribunal has committed error in ordering that respondent is entitled to receive the value of the goods by applying the Northern Plastics Ltd. (Now Merged With Consolidated Photo and Finvest Ltd.) Vs. Collector of Customs and Central Excise, AIR 1999 SC 3643 ? 4. Whether the Tribunal committed an error in holding that the goods in question cannot be confiscated under Section 111 of the Customs Act, 1962 more particularly under Section 111(e)? 5. Whether the Tribunal committed an error in not considering the actual import of the meaning envisaged under Section 135 of the Customs Act, 1962? 6. Whether the Tribunal committed an error in not considering the effect of presumption of culpable mental state as per Section 138A of the Customs Act? 2. Notice had been issued to the respondents represented by M/s. Kiran S. Javali and Lakshminarayan, Advocates. 3. Sri Bhaskar, learned Standing Counsel appearing for the appellant and Sri Lakshminarayan, learned Counsel for the respondents both submit that questions as raised in this appeal are now covered by the judgment dated 29-9-2011 rendered by this Court in CSTA No. 33 of 2006 (The Commissioner of Customs, Bangalore v. T.V. Mohammed and Another 2013(75) Kar. L.J. 225 (HC)(DB)), inasmuch as, after passing the impugned order which is subject-matter of the present appeal, the Tribunal has relying upon this order had allowed many such appeals and the order passed by the Tribunal in such a subsequent appeal, was the subject-matter of the appeal before this Court by the Revenue in CSTA No. 33 of 2006 i.e., order rendered in Nos. 123 and 124 of 2006, dated 30-1-2006. 123 and 124 of 2006, dated 30-1-2006. That appeal of the Revenue in CSTA No. 33 of 2006 having been allowed and order of the Tribunal having been set aside, reasoning given by the Tribunal for passing the present order questioned in this appeal does not sustain and in this view of the matter the present appeal is also to be allowed and the order of the Tribunal set aside and the order passed by the original authority and First Appellate Authority is to be restored. 4. In view of the above position, we allow this appeal and answer question No. 3 in favour of the Revenue and set aside the order of the Tribunal impugned in this appeal restoring the order passed by the original authority as confirmed by the First Appellate Authority. It is also open to the appellant-Revenue to recover the amount, if any refund had already taken place in respect of the amount due by the assessee, but on the basis of the order passed by the Tribunal.