1. Heard both sides and perused the records.
2. The above-mentioned Stay Applications are filed seeking waiver of predeposit of penalty shown against each of the Applicants in the Table mentioned below:-
Applicant Nos. Name of Applicants Status Penalties imposed(Rs.) 1-2) Sh.Sunil Ghosh Owner of Goods 10,00,000/- 3-4) Sh.Sanjoy Goyel Associate of Sh.Sunil Ghosh 10,00,000/- 5-6) Sh.Satya Sarkar Claimant of 14.44 MT of Goods 10,00,000/- 7-8) Sh.Bijay Kumar Gupta Owner of Vehicle 50,000/- 9-10) Smt.Seema Agarwal Owner of Vehicle 50,000/- 11-12) Sh.Uday Singh Owner of Vehicle 50,000/- 13-14) Sh. Shankar Saha Owner of Vehicle 50,000/- 15-16) Smt.Renuka Hamal Owner of Vehicle 50,000/- 17-18) Sh. Sajal Saha Driver of Vehicle 20,000/- 19-20) Sh.Swapan Dey Owner of Vehicle 50,000/- 21-22) Sh.Bhola Ghosh Owner of Vehicle 50,000/- 23-24) Sh.Sukumar Dutta Owner of Vehicle 50,000/-
2.1.The Applicants, namely, S/Shri Sunil Ghosh, Sanjoy Goyel, Satya Sarkar have been penalized for their active involvement in the smuggling of betel nuts of Indonesian origin, whereas, the other Applicants being owners of the vehicles, except Shri Sajal Saha, driver of the vehicle, have been penalized for allowing their vehicles being used in the smuggling activities. Around 48.31 MT of betel nuts were seized on 11.05.2007 by the Customs (Preventive) on the reasonable belief that these goods were of foreign origin namely, Indonesia, and brought into India through Nepal. Initially, a show cause notice was issued on 08.11.2007 proposing penalty against five noticees namely, S/Shri Satya Sarkar, Sunil Ghosh, Sanjoy Goel and Sajal Saha, under Section 112 of the Customs Act, 1962. Later on, an amended show cause notice was issued on 12.12.2007, whereby, seven more noticees were added, that is, owners of the vehicles, proposing penalty under Section 124 and confiscation of the vehicles under Section 115 of the Customs Act, 1962. Thereafter, another show cause notice was issued on 23.07.2008 to five noticees namely, S/Satya Sarkar, Sunil Ghosh, Dilip Das, Chandan Mondal and Pradip Chakraborty proposing penalty under Sections 112 and 114(a) of the Customs Act, 1962.
3. Ld. Advocate for the Applicants submits that even though there are four claimants to the betel nuts seized, who wrote letter to the Department on 03.07.2007 (acknowledged by the Department on 12.07.2007), being owners of the seized betel nuts, but, the same was not taken into consideration while issuing either the first show cause notice or the second show cause notice dated 08.11.2007 and 12.12.2007, respectively by the Department, whereas Shri Satya Sarkar claimed ownership of the part of the quantity of the goods seized(i.e.14.44 MT) much earlier i.e.on 24.05.2007. The ld. Advocate submits that in the impugned Order, the ld. Adjudicating Authority neither referred to, nor considered the existence of the third show cause notice dated 23.07.2008, which remains pending adjudication, till date. It is his submission that unless the issue of ownership of the seized goods is adjudicated, it would be premature in directing imposition of penalty on the basis of statements, whereunder the aforesaid persons had been implicated in the alleged activities of smuggling. The ld. Advocate submits that although the show cause notice dated 23.07.2008 had not been adjudicated, but the present impugned Order was passed by the ld. Commissioner, prematurely, and there are five claimants to the seized goods in question. The ld. Advocate prays that the matter be remanded to the ld. Adjudicating Authority for deciding the issue afresh, along with the show cause notice issued on 23.07.2008.
4. Ld. AR for the Revenue has no objection in remanding the case, as the show cause notice dated 23.07.2008, though involving similar facts and circumstances, is pending adjudication.
5. After hearing both sides for some time, I find that the Appeals could be disposed of, at this stage. Accordingly, after allowing the waiver of the requirement of predeposit of the dues adjudged against each of the Applicants, the Appeals are taken up for disposal, with the consent of both sides.
6. I find that there are three show cause notices issued involving similar facts and circumstances, i.e.seizure of 48.31 MT of betel nuts alleging that the same are of foreign origin and illicitly brought into India. From the records, I find that the first show cause notice was issued on 08.11.2007 and the second one on 12.12.2007, against the aforesaid Applicants alleging their involvement in the smuggling activity. The Applicant here-in-above includes one Shri Satya Sarkar who is the claimant of the part of the goods seized on 11.05.2007. However, the claim of Shri Satya Sarkar as one of the Claimants of part quantity of the seized goods along with four other claimants, namely, S/Shri Chandal Mondal, Pradip Chakraborty, Sanjoy Gohsh and Dilip Das (now successor of Shri Tapan Das) had not been adjudicated. I find force in the submission of the ld. Advocate that unless the ownership of the seized betel nuts is settled, the imposition of penalty on the Applicants including the claimant of goods, Shri Satya Sarkar, alleging their participation in the smuggling of such betel nuts into India, would be incorrect and premature. In the result, the impugned Order is set aside and the matter is remitted to the ld. Commissioner for deciding the issue afresh, taking into consideration all the notices issued on the similar facts and circumstances of the case, namely, notices dated 08.11.07, 12.12.07 and 23.07.08 respectively.
7. At this stage, the ld. Advocate for the Appellants namely, S/Sri Chandan Mondal, Pradip Chakraborty, Sanjoy Ghosh and Dilip Das submitted that they have filed the present Appeals against the same Order of the Adjudicating Authority on the ground that they claimed that the betel nuts seized were not adjudicated even though the show cause notice was issued on 23.07.2008. He submits that since the adjudication order has been set aside, and the matter is remanded to the Adjudicating Authority for deciding the issue afresh, including the show cause notice dated 23.07.2008, therefore, the Appeals filed by the aforesaid four Appellants become infructuous. Accordingly, he prays to withdraw the same.
8. As the ld. AR for the Revenue has also no objection in taking up the Appeals for final disposal, the Appeal Nos.C-257/09, C-281/09, C-284/09 and C-288/09 are dismissed being withdrawn. All the 12 Appeals are thus allowed by way of remand. Stay Petitions disposed.