Hon'ble S.C. Chaurasia,J.
Heard Sri K.D.Nag, learned counsel for the appellant, Sri Vinod Kumar Singh, learned Senior Counsel assisted by Sri Ashutosh Singh, learned counsel for the respondents and perused the record.
The present appeal has been preferred under section 130 of the Customs Act, 1962 against the impugned order dated 30-07-2003 passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi in C/A No. C/289-290/2002-NB(S) remitting the matter to the competent authority to decide the controversy afresh after serving a notice under section 124 of the Customs Act, 1962.
This court by the order dated 16th March, 2009, has framed the following questions of law :-
(1) Whether the Custom Excise & Service Tax Appellate Tribunal was justified in holding that none of the ingredinets of Section 121 of the Customs were attracted in the facts and circumstances of the case or not ?
(2) Whether Sri Krishna Prasad Keshari had successfully proved his claim of ownership and was entitled for notice under Section 124 of the Customs Act or not ?
The brief facts necessary for adjudcation of the present controversy, as borned out from the arguments of learned counsel for the parties, are that the officers of Customs Department had recovered 14 gold biscuits of foreign origin valued at over Rs. 7,00,000/- from the possession of two Nepali nationals namely Sri Dil Prasad Sapkota and Gyan Hari Sapkota on the premise that the gold biscuits had been smuggled into India from Nepal. These two Nepali nationals were travelling in a bus and were intercepted on 18th April, 1999 by the Customs authorities. The gold biscuits of foreign origin were seized under section 110 of the Customs Act as the same were liable to be confiscated under section 111(d) of the said Act.
It has been stated by the learned counsel for the appellant that during the course of interrogation, one of the Sapkotas of Neapli nationals informed that one Ram Prasad of Nawal Parsi, Nepal had given the gold for delivering it to Ram Chandra Jaiswal of Deoria. In a follow-up action, on 19th April, 1999, the customs authorities had raided the house of Ram Chandra Jaiswal and during search operation, a telephone diary and usual packing material for smuggled gold was recovered. During the search operation, Ram Chandra Jaiswal was not availble at the premises. However, from the material on record, it appears that no gold biscuits was recovered from the premises of Ram Chandra Jaiswal.
It has been alleged that during the course of search on 19th April, 1999, one Krishan Prasad Keshari had confronted the officers of the customs department at the house of Ram Chandra Jaiswal and Krishan Prasad Keshari tried to run away. However, he was caught hold by the customs officers and an amount of Rs. 2,50,000/- was recovered from Krishan Prasad Keshari in the denomination of Rs. 500/-.
Statement of Krishan Prasad Keshari was recorded on 19th April, 1999, and on 20th April, 1999 at Customs office, Nautanwa, Krishan Prasad Keshari has stated that he is a servant of M/s Laxmi Readymade Garments, Ballia, and the amount of Rs. 2,50,000/- recovered from him was given by Mr. Ajay Kumar Verma S/o Laxmi Verma for handing over to Ram Chandra Jaiswal. The house was raided by the customs authority at the cost of five gold biscuits of foreign origin. Subject to above facts and circumstances, the customs authorities reasonably believed that Rs. 2,50,000/- recovered from Krishan Prasad was the sale proceed of smuggled foreign origin gold and seized under section 110 of the Customs Act.
Learned counsel for the appellant has relied upon the judgments of the Hon'ble Supreme Court reported in (1997) 3 SCC 721, K.I.Pavunny Vs Assistant Collector, C.Exicse and AIR 1996 SC 255, Naresh J.Sukhwani Vs. Union of India.
Submission of learned counsel for the appellant is that the statement of Krishan Prasad Keshari recorded under section 108 of the Customs Act put a seal to the fact that Rs. 2,50,000/- was the sale proceed and no other view may be taken.
Subject to aforesaid background, on 6th September, 1999, a show cause notice under section 124 of the Act was issued to Ram Prasad, Dil Prasad Sapkota, Gyan Hari Sapkota, Ram Chandra Jaiswal, Krishan Prasad Keshari, Ajay Kumar Verma and M/s Laxmi Readymade Garmentsd and in response to the notice, the respondents have submitted reply.
The Joint Commissioner, Customs, Lucknow, had passed an order dated 29th Febraury, 2000 and held that the amount of Rs. 2,50,000/- was the sale proceed and was rightly confiscated. He has relied upon the statement of Krishan Prasad Keshari recorded under section 108 of the Act. All the three appeals were rejected. However, Rajesh Kumar Soni and Krishan Prasad Keshari have impugned the order of the appellate authority before the Tribunal. The Tribunal has allowed the appeal vide order dated 30th July, 2003 and remitted the matter. The Tribunal took a view that no notice under section 124 of the Act was issued to Rajesh Kumar Soni. Tribunal observed that when Rajesh Kumar Soni raised claim with regard to the amount of Rs. 2,50,000/-, then he should have been given opportunity of hearing by serving a notice under section 124 of the Act. The Tribunal has further recorded a finding that the Customs Department has never been a case that the seized currency or any part thereof was the sale proceed of 14 gold biscuits which were confiscated under the impugned order.
So far as the findings recorded by the Tribunal that the amount of Rs. 2,50,000/-was not the sale proceed of 14 gold biscuits which were seized from two Nepali nationals, seems to be correct.
Learned Counsel for the appellant has not pointed out any evidence on record which may show that the amount of Rs. 2,50,000/- was the sale proceed of confiscated gold biscuits. Moreover, appellant's case is that the gold biscuits were consfiscated which were found during search operation of the bus from the possession of two Nepali nationals on 18th April, 1999. There appears no dispute with regard to search and seizure of 14 gold biscuits from the possession of two Nepali nationals.
The controversy relates to Rs. 2,50,000/- which was seized from the possesion of Krishan Prasad Keshari on 19th April, 1999 during the search operation of the house of Ram Chandra Jaiswal in district- Deoria.Though, Krishan Prasad Keshari had made a statement that he is a servant of M/s Laxmi Readymade Garments and the amount was given to him by Mr. Ajay Kumar Verma S/o Laxmi Verma for handing over to Ram Chandra Jaiswal, but, it was disbelived and the amount was consficated. There appears no evidence which may indicate that the amount of Rs. 2,50,000/- is outcome of the sale of some contraband goods or gold biscuits.
Moreover, Rajesh Kumar Jaiswal moved a representation stating that the amount in question belongs to him. Though, the statement made under section 108 of the Act may be believed, but, it does not mean that other persons who have got interest over the property, do not have got any right to represent their cause.
Hon'ble Supreme Court in the judgments referred hereinabove by the learned counsel for the appellant have held that the statement recorded under section 108 of Customs Act shall deem to be a statement given in a judicial proceeding. But, the statement so given, is rebuttable by the affected parties. Since, Sri Rajesh Kumar Soni has filed an application, then, he should have been given opportunity of hearing with regard to present controversy. Much emphasis has been given to the provisions contained under section 124 of the Act.
Further submission of Sri K.D.Nag, learned counsel for the appellant is that the notice under section 124 of the Act may be given to only owner of the seized items and not to other persons. We do not accept the argument advanced by the learned counsel for the appellant. For convenience, section 124 of the Customs Act, 1962, is reproduced as under :-
"124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person-
(a) is given a notice in (writing with the prior approval of the officer of customs not below the rank of a Deputy Commissioner of Customs, informing) him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specififed in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and
(c) is given a reasonable opportunity of being heard in the matter;
Provided that the notice referred to in clause (a) and the representation referred to in clause(b) may at the request of the person concerned be oral.
Now, it is settled rule of interpretation that every word of statute should be given a meaning. The provisions contained under section 124 of the Act provide that no order of confiscating any goods or imposing any penalty on any person shall be made under the said Chapter unless the owner of the goods or such person is given a notice enabling him to provide reasonable opportunity of being heard.
The Legislature to their wisdom has used the words "any person followed by word "owner or such person." It means that during the course of proceedings, owner as well as other interested persons shall have right to raise their claim. In case the claim is advanced for any ground whatsoever, such person should be heard. We cannot exclude any word from the statute while interpreting the provisions of section 124 of the Act. Once Rajesh Kumar Soni has moved a representation showing his interest with regard to the amount involved, then he should have been served with a notice. Accordingly, the Issue no. 2 as framed by this court is affirmed with the finding that notice should have been issued to Rajesh Kumar Soni. We refrain ourselves from recording any finding with regard to Issue No. 2 leave it open for further adjudication if necessary.
Since, the controversy has been remitted back to the Joint Commissioner, Customs, Lucknow and the respondents have put in appearance, it shall not be necessary to serve a notice under section 124 of the Act. It shall be open to the respondents to submit their representation in order to advance their claims before the Joint Commissioner, Customs, Lucknow within a period of one month from today. The Joint Commissioner, Customs, Lucknow, shall adjudicate the claims of the respondents in accordance to law expeditiously and preferably within a period of four months thereafter.
The Joint Commissioner, Customs, Lucknow shall decide the controversy without being influenced by the observations made hereinabove on the basis of evidence on record.
The appeal is allowed in part. No order as to costs.
Order Date :- 4.2.2010 AKS