Page 193 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] MERICO LOGISTICS PVT. LTD. v. COMMR. OF CUS. (AIRPORT & ADMN.), KOLKATA 583

therefore it would not have been possible for the Weigh Bridge Operator to take
the correct weight on computerized Weigh Bridge. In his statement dated Sep-
tember 5, 2016 Shri Baidya informed that another Weigh Bridge Operator was
also there at the CONCOR CFS by name Shri Rahul Kumar and that the weigh-
ment slips would have been issued either by him or Shri Rahul Kumar, whoever
was present at the relevant time, but his statement was not recorded by the DRI
was recorded. In the circumstances it would not be possible to arrive at the con-
clusion as to who have issued weighment slips in absence of their signature. Five
weighment slips which have been relied upon by the department bears no signa-
ture of the Weigh Bridge Operator. It is also on record that department has not
produced remaining weighment slips other than the five enclosed with the show
cause notice, but in fact these original weighment slips have been resumed from
Shri Ratan Baidya, which is acknowledged by the Director of the appellant Shri
Subhasish Bhattachariya. Non-supply of remaining weighment slips have made
the proceeding invalid, illegal and bad in law and the show cause notice is there-
fore required to be set aside on the basis of which the impugned order has been
passed.
12. It is also submission of Learned Advocate that the various state-
ments which have been recorded from the Weigh Bridge Operator, Director of
the Company are contradictory to each other and thus required to be ignored in
the proceeding. For instance, vide statement dated September 7, 2016 Shri Ratan
Baidya in response to Question No. 4 alleged that the Director of the appellant,
Shri Subhasish Bhattachariya has asked him to manipulate the net weight of the
imported consignment, however in the other statement dated November 11, 2016
Shri Bhattachariya has specifically denied the same. Shri Subhashish Bhattacha-
riya in his statement also stated that he was not aware of the fact that Weigh
Bridge was not in working condition. The statement of Shri Ratan Baidya is also
not consistent to the extent that he in his statement dated 5-9-2016 he deposed
that he had manipulated the weight of 100 containers handled by the appellant
from March, 2016, but at the same time in reply to Question No. 1 of his state-
ment dated 7-9-2016, he has said that the computer system at the Weight Bridge
was not in order from July 2016. There is no confession of manipulation of
weighment slips on the part of the appellant as alleged, which is evident from
the statement dated November 11, 2016, of Shri Subhasish Bhattachariya wherein
he deposed that he was not aware of the Weigh Bridge at CONCOR CFS being
out of order during the said period. Further, in his statement dated 5-9-2016 in
reply to Question No. 3 Shri Subhasish Bhattachariya has agreed to accept the
responsibility on behalf of the importer only if such misdeclaration is apparent
from the weighment slip resumed by the DRI. All these facts have not been con-
sidered by the Learned Commissioner.
13. Learned Advocate again impressed upon that the Commissioner
has wrongly concluded in the impugned order that the appellant was de facto
importer without having any evidence to suggest this in the case. The concerned
importer has filed Bill of Entry with all details including IEC codes. In the cir-
cumstances it will be incorrect to hold that the appellant was de facto importer.
Merely because return of the summons with remark that importer concerned
does not exist is not sufficient to arrive at the conclusion that the appellant has
himself imported the consignment.
14. Learned Advocate has further relied upon the following case laws
in support of the submission made hereinabove.
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