Cus - Any other law imposing restriction on movement of any category of goods within India cannot be made ground for confiscation of such goods under Customs Act - confiscation of Agarwood & penalties set aside: CESTAT
By TIOL News Service
KOLKATA, NOV 30, 2015: AGAINST an order of confiscation of 54.50 Kgs. of Agarwood of a plant Acquilaria malaccensis, valued at Rs.4,90,500/-, upheld by the Commissioner(A), the appellant is before the CESTAT.
The case is that on 18.01.2014 the appellant was intercepted by the officers of DRI at the check-in-counter of Indigo flight at L.G.B.I.A., Guwahati based on an intelligence that appellant is carrying Agarwood for export to Bangkok.
The Appellant was found to have 54.50 Kgs. of Agarwood in his baggage along with a Tax Invoice No.278 dated 17.01.2014 of M/s. Assam Perfumery Supply Hojai; a transit pass No.50 (Book No.15024) issued by Range Forest Officer (RFO) Golaghat Range, Forest Department, Assam; Lieu TP No.1984/23 issued by Forest Beat Officer, Kohra Range, Assam; Money Receipt No.23 dt.17.01.2014 issued by RFO, Golaghat Range, Assam and his Indian passport.
The Agarwood was seized by the DRI officers under the reasonable belief that the goods are meant for export to Bangkok.
The appellant in his statement dated 19.01.2014 explained the licit acquisition of agarwood as per the accompanying documents and also stated that he was carrying the goods to Mumbai for local sales there; that the goods were not meant for taking to Bangkok as he was having no valid visa for Bangkok in his passport.
All this culminated into a SCN and later into an o-in-o & o-in-a as mentioned at the outset.
Before the CESTAT, the appellant submitted that there is no evidence on record that the seized goods were meant for export. In support of his argument that Agarwood is neither notified nor was seized in Customs Area the following decisions were relied upon -
+ Md.Liakat Ali 2007-TIOL-2240-CESTAT-KOL
+ Debdas Adhikari & Dinabandhu Adhikary 2007-TIOL-1769-CESTAT-KOL
Reacting to these submissions the AR floated the following hypothesis - that appellant on earlier occasions has also travelled to Bangkok twice as per his passport; that he has also earlier taken two consignments of Agarwood to Mumbai which must have been taken to Bangkok; that appellant could not produce any evidence of legal acquisition of seized goods as the documents furnished by him were found to be forged or not covering the Agarwood under seizure; that as per Notification No.3(RE-2003)/2002-2007 dated 31.03.2013, read with Schedule 2 (Chapter-12) of the Export Policy 2002-07 export of Agarwood is prohibited; that circumstantial evidences strongly suggest the seized Agarwood was meant for illegal export to Bangkok.
After considering the submissions, the Bench relied on the case law cited & observed -
++ As per the provisions (of s.113(d)) it has to be established by the Revenue that Agarwood was attempted to be exported to Bangkok, as the seized goods are neither notified under Section 123 nor 'specified goods' under the Customs Act, 1962. First appellate authority in para 23, 24 & 25 of the Order-in-Appeal dated 08.12.2014 has only upheld the confiscation on the basis of illegal acquisition of seized goods and has not given any findings as to how seized goods were meant for export.
++ There is no evidence on record that appellant during earlier two visits to Bangkok carried Agarwood though an attempt was made by investigation as per a No.17 contained in the statement dated 19.01.2014 of the appellant. There was no valid visa in the passport of the appellant for going to Bangkok.
++ Circumstantial presumptions based on the intelligence of DRI that on earlier two occasions he has gone to Bangkok and not giving addresses of his earlier buyers of Agarwood in Mumbai cannot take the place of evidence that appellant on earlier occasions has illegally exported Agarwood to Bangkok.
++ In the present case also the goods are not seized in a customs area. There is no inculpatory statement, no valid visa/ticket with the Revenue suggesting intended visit of the appellant to Bangkok. The seized goods are also neither notified goods nor specified goods under the Customs Act, 1962. Prohibitions under the Export Policy will come into operation if the goods are brought into the Customs area.
++ It has to be held that investigation is not able to prove that Agarwood seized from the appellant was attempted to be exported out of India. Any other law imposing prohibition/restriction on the movement of any category of goods within India cannot be made the ground for confiscation of such goods under the Customs Act, 1962. Accordingly, confiscation of the seized goods and the penalty imposed upon the appellant, under Sections 113 & 114 respectively of the Customs Act, 1962, are required to be set aside.
Nonetheless, the Bench observed that there are findings by the lower authorities that the documents produced by the appellant were not genuine. In this view of the matter, the CESTAT held that the impugned goods should be released to the appellant in the presence of jurisdictional Forest officers for taking any suitable action on the goods/appellant, as per their laws/procedures.
The appeal was allowed on the above terms.
(See 2015-TIOL-2539-CESTAT-KOL)
