Judgment:
1. The prayer in the stay petition is for waiver of the condition of predeposit of penalty of Rs.3,50,000/- imposed on Shri Radhey Shyam Gupta of Calcutta.
2. Shri K.P. Dey, ld. Advocate appearing for the appellant/applicant, submits that Shri Radhey Shyam Gupta is owner of the Transport-Company.
He admits that the package containing raw silk yarn was seized from the premises of Shri Gupta. He, however, flatly denies the above allegation of the Department that the goods found in the premises of Shri Gupta were of foreign origin. He submits that Shri Gupta has nothing to do with the smuggling of the said goods. He argues that in the show-cause notice there was no mention of the piece of evidence i.e. literature showing "Blossoms-White Seeafilatory-China National Sild Import & Export Corporation- made in China" which the Department relied upon in connecting the said slip to the package under seizure. Ld. Advocate submits that this piece of evidence cannot lead to the conclusion that the goods involved were of smuggled nature and also does not lead to the conclusion that the goods in question have anything to do with so called smuggling done by Shri Gupta. He, therefore,m submits that there is a prima-facie case for waiver of the condition of the predeposit. He makes it clear that the goods are not claimed by Shri Gupta. Ld.
Advocate also submits that Shri Gupta is running the Transport business on a small scale and in this connection he submits the income-tax return for the assessment year 2000-2001.
3. Shri R.K. Roy, ld.JDR appearing for the Revenue submits that the Department has come to a correct conclusion that the goods involved are smuggled goods based on circumstantial evidence. The piece of literature found in the premises of transport company is corroborating the charge of smuggling indulged in by Shri Gupta and however, Shri Gupta could not give correct address of the person who has booked the consignment. He, therefore, submits that the absolute confiscation of the goods in question is justified and the imposition of penalty of Rs.3,60,000/- imposed on Shri Gupta as personal penalty is proper. He, therefore, opposes the prayer for the grant of unconditional stay.
4. After hearing both sides and on perusing the evidence on record, it is found that the Department has come to the conclusion that the goods in question are of smuggled nature purely based on the piece of literature found in the premises of transport company. Prima-facie, it appears that the piece of literature which is relied upon by the Department, cannot be connected to the goods in question to establish that the appellant/applicant has indulged in smuggling of raw silk. I am of the opinion that the applicant/appellant has made out a case for unconditional stay and as such I am inclined to grant un-conditional stay. Ordered accordingly. Matter to come up for hearing in due course.