IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.243 of 2010 13 24.9.2010 Sheoji Prasad Gupta son of Late Bishun Sah, proprietor James Jweller, Sahebganj, Chhapra, District Saran at present residing C/o Sanjeev Kumar Mahaseth, J.D. Construction, Surbhi Daba Ke Saman, S.P.Verma Road, Patna, P.s. Gandhi Maidan, District Patna … Appellant … Appellant … Appellant VERSUS 1. The Union of India through Commissioner, Customs Eastern Central Revenue Building, Birchand Patel Path P.S. Kotwali, District Patna 2. The Commissioner Customs, Central Revenue Building, Birchand Patel Path, P.S. Kotwali, Patna 3. The Joint Commissioner Customs, Central Revenue Building, Birchand Patel Path, P.S. Kotwali, Patna 4. The Deputy Commissioner Customs, Indo & Nepal Border, Muzaffarpur 5. The Deputy Commissioner, Customs, Customs House, Raxaul, East Champaran 6. The Assistant Collector, Customs, Land Custom Station, Raxaul, East Champaran 7. The Commissioner Appeals, Customs and Excise, Revenue Building, Patna 8. The Custom Inspector cum Seizure Officer, Land Custom Station Raxaul, East Champaran … Respondents … Respondents .. Respondents ------- For the Appellant : Mr Sheoji Prasad Gupta, In- person For the Respondents: M/s Archana Meenakshee and Archana Sinha, Advocates ------ Heard the parties. The appellant has appeared in person. 2. The appeal is directed against the order dated 9.11.2009 passed by Customs, Excise and Service Tax 2 Appellate Tribunal, Kolkata in Appeal Nos.Cus.Ap.478- 479/09 as contained in Annexure-17. By that order, both the appeals were dismissed on the ground that there was no infirmity in the order rejecting appellant’s claim for the gold recovered from Sri Jay Prakash Verma and Sri Parsuramjee on 8.12.1990. The relevant facts appearing from the records have been noticed in detail by the learned Tribunal in the order under appeal. Both the aforesaid persons were apprehended at the land customs station at Indo- Nepal border while coming from Nepal. They disclosed to the customs officials that the gold was kept concealed in their rectum and had been purchased from a shop in Vishal Market, Kathmandu. They also disclosed that they are employees of the appellant and were carrying gold at his instructions. 424 gram was recovered from Sri Parshuramjee and 259 gram from the other person. On summons, the appellant appeared on 14.1.11991 before the investigating officer and gave a simple reply that he was unable to understand the matter correctly. A show cause notice was issued on 5.3.1991 for confiscation of the gold and for imposition of penalties on Sri Jay Prakash Verma, Sri Parsunramjee and the appellant. In his reply, the appellant 3 claimed the gold. The adjudicating authority confiscated the gold and imposed the penalties. Sri Jay Prakash Verma and Sri Parsuramjee never challenged the findings of the adjudicating authority nor filed any appeal against penalties. The appellant filed appeal before the Commissioner (Appeals) which was dismissed. On further appeal by the appellant, the Tribunal vide order dated 19.11.2007 which is contained in Annexure-11, remanded the matter to the Commissioner (Appeals) to decide the matter afresh. The appeal was again rejected by order dated 9.5.2008 which is contained in Annexure-14. 3. In the meantime the appellant preferred a criminal writ before this Court bearing CrWJC No.78 of 2008 seeking release of the seized gold on the basis of orders of remand passed by the Tribunal on 19.112007 in Customs Appeal Nos.118-119 of 2007. That writ petition was allowed by order dated 23.5.2008. Against that the authorities preferred Cr.Appeal No.1682 of 2009 before the Supreme Court of India. The Apex Court accepted the submission that appellant Shiojee Prasad Gupta should prefer an appeal against the order of the Commissioner (Appeals) dated 9.5.2008 before the Tribunal. Accordingly, 4 the appeal was disposed of. The learned Tribunal has thereafter passed the order under appeal and has rejected appellant’s claim for gold after discussing the relevant facts and materials such as the confessional statements by the two persons from whom gold was seized from their rectum on the basis of such statement and they never retracted from their statements prior to show cause notice dated 11.4.1991 and they never challenged the findings of the adjudicating authority nor filed any appeal against imposition of penalties upon them. It was also noticed that their statements under Section 108 of the Customs Act was admissible in evidence and it showed that the gold was being smuggled from Nepal at the instructions of the appellant. 4. The Tribunal noticed that in his reply of show cause notice the appellant claimed that the gold was being sent by him to one Ajay Saaraf for making gold ornaments but said Ajay Sharaf denied the arrangement that he was to receive gold from the appellant for making gold ornaments. 5. The appellant has challenged the order under appeal mainly on the strength of earlier order of the Tribunal dated 19.112007 in which some observations 5 favourable to the appellant were made such as irregularity in not subjecting the two persons to x-ray before recovering the gold from their rectum and that the gold was having no foreign mark. 6. The order dated 19.11.2007, however, did not decide the dispute finally because it found that the entire evidence did not appear to have been taken into consideration in the first appellate order. The two aspects on which observation was made in favour of the appellant did not permit the Tribunal to decide in his favour and hence, the matter was remitted for taking into consideration the entire evidence for fresh decision in accordance with law. 7. It is noticed that the Commissioner (Appeals) in his order dated 9.5.2008 has found that the appellant in a dubious manner evaded summons at the investigating stage and did not claim the gold before the investigating authorities. He did not make any statement even before the customs authorities to claim the gold in question and the persons from whom gold was recovered have accepted the findings of the adjudicating authority in respect of retrieval of the gold from the body of those persons. In such 6 circumstances, it was held that the appellant had no proper locus to allege non- compliance with the provisions of Section 103 of the Customs Act. 8. The appellant initially raised a doubt regarding maintainability of this appeal and submitted that he had converted a writ petition preferred by him into the present appeal only upon orders of this Court. However, learned counsel for the respondents did not object to the maintainability of appeal and instead took a firm stand that since the National Tax Tribunal has not been constituted as yet, the appeal is maintainable. Since the stand of the respondents is in favour of maintainability of appellant’s appeal, we have considered the same on merits. 9. Considering the entire facts and circumstances, we find no infirmity in the impugned order and no merit in this appeal. The appeal is accordingly dismissed. sk ( Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J.)