1. Heard the three Ld. Counsels appearing for the 14 appellants and the Ld. D.R. appearing for the Department.
2. In respect of appeal No. CDM- 13/04, the impugned goods were alleged to be third country origin and illegally imported. In respect of rest of the appellants, the allegation is attempted illegal export of Indian origin goods.
3. We find from para 4.2 of the impugned order that in the case of appeal No. CDM-13/04 relating to the appellant Shri Tej Narayan Gupta, the adjudicating Commissioner has held that there are no claimants for the 4620 pieces of mosquito nets of third country origin and he has absolutely confiscated the same under Section 111(d) of the Customs Act, 1962. The Ld. Advocate appearing for the appellant points out that in paragraph 5.2, the very same goods have been recorded to have been released provisionally on payment of impugned security amount of Rs. 42,000/- which the Adjudicating Commissioner has appropriated towards redemption fine of Rs. 30,000/- and he has imposed a penalty of Rs. 10,000/-. The Ld. Advocate further submits that these goods were also of Indian origin and the same after provisional release have been legally exported to Nepal under intimation to Customs Authorities and as such, the impugned order passed by the Commissioner is self - contradictory.
4. The Ld. D.R. has no explanation to the contradictory order passed by the adjudicating Commissioner.
5. We find substance in the arguments advanced by the Ld. Advocates in respect of the appellant Shri Tej Narayan Gupta (appeal No. CDM-13/04).
In view of the contradictory order passed, we set aside the same to the extent it relates to the above named appellant and allow the appeal.
6. In respect of other appellants relating to seizure of Indian goods near Indo Nepal border, in some of the cases, the appellants have disowned the goods. In respect of all the cases, the appellants argue that the Department has not proved that the impugned goods were to be exported illegally to Nepal. The Ld. Advocates also argued that in any case these goods can be freely exported to Nepal as there is no export duty on these goods nor any export restriction. They also argue that the very basis of confiscation is notification No. 50 - Customs dated 23/3/80 issued under Section 11H of the Customs Act, 1962. They argued that the said notification has been issued in the context of specified goods under Section 11I of the Customs Act, 1962. The impugned goods are not specified under Section 11I and hence, the said notification does not have any application to the impugned goods.
7. After hearing both sides and perusal of case records, we find that there is force in the argument advanced by the Ld. Advocates that under Section 11I only Acetic Anhydride has been specified under Notification No. 60/91-Customs dated 29/08/1991. Hence the areas specified under Notification No. 50/80 has no relevance on any (Sic) goods other than Acetic Anhydride. As such, the very basis holding that the impugned goods were found in the specified area and therefore, presumed (Sic) to be meant for illegal export has no legal basis. Accordingly, we set aside the impugned order in respect of the remaining twelve appellants including penalties imposed therein. However, we clarify that the appellants who have disclaimed the goods would have no right to the impugned goods confiscated as the same did not belong to them according to their own submissions before the Customs Authorities.
8. In regard to appeal No. CDM-15/04 relating to appellant Shri Raj Kumar Gupta, it is the submission of the Ld. Advocates that the Adjudicating Commissioner has not passed a specific order in regard to the appellant nor a copy of the adjudication order has been sent to him. However, the appellant is aggrieved as the impugned goods claimed by him has been ordered to be confiscated under paragraph 4.10. The said appellant had claimed the impugned goods and in view of our order holding that the impugned goods are not liable to be confiscated, the appellant is entitled to the release of the said goods.
9. The release of the goods will be subject to orders from any competent court, if any. All the 14 appeals are allowed in the above terms.