2009 (7) TMI 387 - AT - Customs

Appellate Tribunal remands case due to failure to consider evidence, directs fresh review

BIMAL DAS Versus COMMISSIONER OF CUSTOMS (PREV.), KOLKATA

The Appellate Tribunal CESTAT, KOLKATA allowed all three appeals by way of remand, setting aside the impugned order due to the lower authority's failure ... Proof of smuggling – non-examination of records properly - The lower (Original), authority has recorded in his order that the appellants claimed the goods first time on 10-8-05 alleging that the BSF personnel destroyed the accompanied documents. This conclusion is contrary to the fact on record as one of the appellants has made such allegation and has claimed the goods on 24-1-05 itself. As such, the submission was also made by the appellants before the lower appellate authority as is clear from their appeal papers filed before him. Secondly, the authorities below have come to the conclusion that the show-cause notice was issued to the appellants. Now, this conclusion is contradicted by the evidence obtained by the appellants under the RTI Act as the Assistant Commissioner of Customs, Barasat Division, has categorically stated that the amount of postage stamp and even the addressee, M/s. Proactive Express are found to be non-existent as per the Issuing Register. - It is apparent that the entire records of the cases have not been examined properly and the points raised by the appellants have also not been considered adequately. Hence, the impugned order is set aside and the matter is remanded to the lower appellate authority with the direction that he shall call for the original records from the original authority and pass a fresh order The Appellate Tribunal CESTAT, KOLKATA, heard an appeal where the advocate for the appellants argued that vital submissions had not been considered by the lower appellate authority. The advocate claimed that the BSF personnel took away the documents accompanying the impugned goods at the border, and that the show-cause notice was never issued. The Departmental Representative supported the lower appellate authority's decision. Upon review, the Tribunal found merit in the appellant's arguments, noting that the lower authority failed to adequately consider the evidence and submissions. Consequently, the impugned order was set aside, and the matter was remanded to the lower appellate authority for a fresh review of the case. All three appeals were allowed by way of remand. The Tribunal directed the lower appellate authority to call for original records and provide the appellants with an adequate opportunity to present their case. The order was dictated and pronounced in open court.