2010 (3) TMI 708 - HC - Customs

Penalty Smuggling no direct evidence to come to the conclusion that the appellant had involved in lifting packages without clearing from the customs and that the involvement of the appellant has not proved either conducting an identification parade or giving an opportunity for the appellant to cross-examine - witnesses stated that they would identify the person who was taking the consignment in blue color maruthi car - It is not in dispute that the car owned by the wife of the appellant in a blue maruthi car - wife of the appellant has stated that her husband (appellant herein) was using her maruthi car but she was not aware that he was using vehicle for smuggling activities - no necessity for the Department to conduct identification parade since the appellant himself was working in the same place for more than three years and as the witnesses were acquainted with the appellant and that they have identified his photo - appellant was working as a Customs Officer even on the date of the incident and on earlier occasion - application to retract from his statement long after as rightly held by the Commissioner it was only an after thought and therefore - Except the appellant and his wife others have not filed any appeal - They have accepted the penalty levied No merit in appeal

Summary

Issues Involved:
1. Error in levying penalty without cross-examination opportunity.
2. Penalty levy without conducting an identification parade.
3. Tribunal's order confirming the penalty based on perverse findings.

Detailed Analysis:

1. Error in levying penalty without cross-examination opportunity:
The appellant argued that the Commissioner erred in levying a penalty without affording an opportunity to cross-examine the Seizing Officer and the Duty Officer station. The court noted that the appellant was a Customs officer with prior experience at Bangalore International Airport and had not denied his contact with Uthappa, the Lufthansa Cargo Manager. The statements of witnesses, including Loaders Vasanth Kumar and Desh Kumar, were clear in identifying the appellant as the person involved in the smuggling activities. The court concluded that there was no necessity for cross-examination as the appellant's involvement was evident from the statements and identification by the witnesses.

2. Penalty levy without conducting an identification parade:
The appellant contended that the penalty was fatally flawed due to the absence of an identification parade. The court rejected this argument, stating that the appellant had been working at the same location for over three years and was well known to the witnesses. The witnesses, including Vasanth Kumar, Desh Kumar, Rajesh Jain, and Yahya Shabandri, had identified the appellant from his photograph, making an identification parade unnecessary. The court emphasized that the appellant's familiarity with the witnesses and their clear identification of him negated the need for an identification parade.

3. Tribunal's order confirming the penalty based on perverse findings:
The appellant claimed that the Tribunal's order confirming the penalty was based on perverse findings. The court examined the evidence and found that the appellant had given a voluntary statement under Section 108 of the Customs Act, which he later retracted. The court agreed with the Commissioner and the Tribunal that the retraction was an afterthought, given the appellant's knowledge of the Customs Act and procedures. The court also noted that other individuals involved, including Rajesh Jain and Yahya Shabandri, had accepted the penalties imposed on them, further corroborating the appellant's involvement in the smuggling activities.

Conclusion:
The court dismissed the appeal, affirming the penalty imposed by the Commissioner and upheld by the Tribunal. The court found no merit in the appellant's arguments regarding the lack of cross-examination, the necessity of an identification parade, and the alleged perversity of the Tribunal's findings. The questions of law raised by the appellant were answered against him, and the appeal was dismissed.