D.B.CIVIL WRIT NO 1/10 v. CUSTOMS EXCISE & SERVICE TAX APPELLATE

- August 5, 2011 HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MS.JUSTICE BELA M.TRIVEDI Mr. G.K. Rana for the appellant, Mr. Ajay Shukla for the respondents, BY THE COURT (PER HON.BELA M.TRIVEDI J.) The present appeal has been preferred by the appellant under the Provisions contained in Section 130 of the Customs Act, 1962, challenging the legality and validity of the order dated 9th of July 2009, passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (CESTAT), in Custom Appeal No. 279 of

2006, whereby the CESTAT confirmed the order of penalty of Rs.2,50,000/- imposed on the appellant by the Commissioner of Customs, passed in Order- in- Original No. 16/2005.

It appears that the Customs Authorities had found that some precious and semi precious stones imported from M/S Kalyan D.B.CIVIL WRIT NO 1/10 2 Gems Trading Co. of Bangkok (Thailand) through a post parcel bearing No. 55654/8/04 on 6.8.2004, had remained unclaimed and that the said goods imported were also undervalued. The Commissioner of Customs, Jaipur, therefore, had issued show cause notices to the present appellant, who was the Proprietor of M/S Gaurav Exports in whose name the said import was made, and also against one Krishna Tambi and Sachin Tambi. The Commissioner of Customs thereafter passed a detailed order on 30.12.2005, in Original No. 16/2005 confiscating the said goods and also imposing penalty of Rs. 5 lacs on Krishna Tambi, Rs. 2.50,000/- on Sachin Tambi and Rs. 2,50,000/- on Ashok Kumar Khandelwal under the provisions contained in 112(a) of the Customs Act. Being aggrieved by the said order, the said three persons had preferred the appeals being Nos. 250/2006, 251/2006 and 279/06 respectively before the CESTAT. The CESTAT after considering the record of the case and hearing the learned Advocates for the parties gave benefit of doubt to the appellants Krishna D.B.CIVIL WRIT NO 1/10 3 Tambi and Sachin Tambi by setting-aside the order of penalty levied on them, however, confirmed the order of penalty of Rs.2,50,000/-, levied on Ashok Kumar Khandelwal in his Appeal No. C-279/2006, vide the impugned Order dated 9.7.2009. Being aggrieved by the said order passed by the CESTAT against the present appellant, the present appeal has been filed before this Court under Section 130 of the Customs Act.

It has been sought to be submitted by learned Advocate Mr. G.K. Rana, for the appellant that the impugned order passed by the CESTAT was without granting sufficient opportunity of hearing to the appellant. He also submitted that the CESTAT was not justified in confirming the order of imposing penalty on the appellant, relying upon the statements of Krishna Tambi and Sachin Tambi. According to him there are substantial questions of law involved in the present appeal which require consideration. However, the learned Advocate Mr. Ajay Shukla for the respondents submitted that the order D.B.CIVIL WRIT NO 1/10 4 passed by the CESTAT is in accordance with law and there being no substantial question of law involved, the appeal deserves to be dismissed.

Having regard to the submissions made by the learned Advocates for the parties and the documents on record, more particularly the impugned order passed by the CESTAT, it appears that the CESTAT after considering the record of the case and hearing the learned Advocates for the parties, had passed the common order giving benefit of doubt to the other two appellants i.e. Krishna Kumar Tambi and Sachin Tambi, and had found the present appellant Ashok Kumar Khandelwal liable for the charges alleged against him under the Customs Act. It was also found by the CESTAT that the appellant Shri Khandelwal was the Proprietor of M/S Gaurav Export, who had authorized Krishna Kumar Tambi, vide letter dated 6.8.2004 to clear the impugned import consignment and there was nexus between the impugned consignment and the appellant. The CESTAT after considering the evidence in appeal had confirmed the D.B.CIVIL WRIT NO 1/10 5 order of penalty passed by the Commissioner of Customs against the present appellant. It is true that on the date of passing of the order by the CESTAT, the learned Advocate for the appellant, had not remained present as directed earlier, however one Mr. U.K. Sharma had already appeared earlier as the counsel for the appellant on 2.6.2009 on which date he was heard. Since the CESTAT has passed the reasoned order after considering the evidence on record, it could not be said that the impugned order passed by the CESTAT is illegal or improper. Even otherwise Mr.G.K.Rana, learned Advocate for the appellant has failed to point out any question of law much less substantial question of law being involved in the present appeal and hence the appeal deserves to be dismissed. In that view of the matter, the appeal being devoid of merits is hereby dismissed. (BELA M.TRIVEDI)J. (ARUN MISHRA),CJ