IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.53 of 2006 11 25.8.2010 Commissioner of Customs, Government of India, Patna, 5th Floor, C.R. Building, Bir Chand Patel Path, P.S. Kotwali, Town and District Patna ….. Appellant VERSUS Pramod Jhunjhunwala, Proprietor M/s Om Smriti Textiles Pvt. Ltd., Sujaganj, Bhagalpur ….. Respondent ------- For the Appellant : Mrs Nivedita Nirvikar, Advocate For the Respondent : Mr Ganpati Trivedi, Advocate ------- On hearing Mrs Nivedita Nirvikar, the counsel for the Revenue and the learned counsel for the respondent, it transpires that out of the common transaction in which 430 kg of silk yarn of third country origin were seized at Patna Railway Station, three persons were noticed by the Department for confiscation of the seized goods and for imposition of penalty. Allegedly, the goods were purchased by the respondent herein from a firm at Varanasi represented by one of the noticees Vijay Sarawagi. The goods were given for transportation to one Moti Singh of Varanasi. By the order under appeal dated 25.8.2005, the Customs, Excise and Service Tax Appellate Tribunal, East - 2 - Zonal Bench, Kolkata allowed the appeal of all the three noticees in CSM- 98- 100/04. Against that common order three appeals are said to have been preferred by the Commissioner of Customs, Government of India, Patna. One of the appeals bearing MA No.52 of 2006 was dismissed by a Division Bench of this Court by order dated 25.9.2008. Against that, the Commissioner of Customs preferred Special Leave to Appeal (Civil) No.11089/2009 before the Hon’ble Supreme Court in which Leave was granted on 30.11.2009. According to learned counsel for the appellant, the issues involved in this appeal are identical to those in MA No.52 of 2006 and, therefore, this appeal should be kept pending. On the other hand, learned counsel for the respondent submits that in identical circumstances MA No.52 of 2006 has already been dismissed by a Division Bench of this Court after noticing that according to the Tribunal, the Revenue had led no evidence to establish that the subject goods were smuggled by the respondent. Leaned counsel for the respondent further drew our attention to the discussion and findings contained in - 3 - paragraph 4.2 of the order dated 17.7.2003 passed by the Joint Commissioner, Customs, Patna to highlight that on inquiry regarding the genuineness of the bill of entry submitted by the noticees, a positive verification report was received from the Appraiser (EDI), Customs House, Kolkata and the verification report of the Customs House, Chennai is still awaited. Considering the aforesaid facts and circumstances and the fact that respondent herein has claimed to be a purchaser of the subject goods from a firm at Varanasi which has taken a stand that it had imported the goods, we find no good reason to take a different view than the view taken by the Division Bench in MA No.52 of 2006. This appeal is, therefore, dismissed. sk (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J )