2011 (2) TMI 442 - HC - Customs

Evasion of duty - Confiscation - Illegal importation - the frequent visits also revealed that Shri Mohd. Aqeel Khan had opted for different airports while coming back from Dubai. Shri Aqeel Khan was detained under COFEPOSA 1974, for one year, vide Order dated 4-8-2005, confirmed by the Advisory Board, U.P. Govt., on 27-10-2005 - The Passport No. Z-1263449, of Shri Niyaz confirmed that he too had travelled to and from Dubai in similar pattern like Shri Mohd. Aqeel Khan and on three dates i.e. 23-4-2005, 7-5-2005 and 4-7-2005 they had travelled together from Dubai & arrived at Lucknow airport - adjudicating authority had recorded the finding that Shri Akhlaq Mohammad Naqvi, Advocate had adopted obstructionist manner, reports of investigation which indicates that he tried to abate the process of law and was the part of syndicate and had vested interest in Aqeel Khan - During course of proceeding before the Adjudicating Authority, notices were sent through registered post, but it was returned back with remark of postman to the effect that the petitioner is not available - It appears that appellant has filed application under RTI Act within sixty days The allegation that the appellant had adopted dilatory tactics during the course of proceeding before Adjudicating Authority may not be taken into account while considering period of limitation with regard to filing of appeal - Appeal is allowed by way of remand to Commissioner(A)

Issues Involved:
1. Illegal import and smuggling of goods.
2. Confiscation and penalties under the Customs Act, 1962.
3. Admissibility and validity of statements recorded under Sections 107 and 108 of the Customs Act.
4. Procedural delays and the right to appeal.

Issue-wise Detailed Analysis:

1. Illegal Import and Smuggling of Goods:
The case involved the interception of a passenger at Amausi Airport, Lucknow, carrying contraband goods without declaration. The goods included cameras, saffron, Bluetooth devices, dental needles, memory cards, and wristwatches, valued at Rs. 16,19,000/-. The passenger admitted in his statement under Sections 107 and 108 of the Customs Act, 1962, that he purchased these goods in Dubai for sale in India. The goods were seized under Section 110 of the Customs Act, as they were believed to be illegally imported for commercial exploitation, evading customs duty.

2. Confiscation and Penalties under the Customs Act, 1962:
The adjudicating authority ordered the confiscation of the seized goods under Section 111 of the Customs Act but allowed an option for redemption upon payment of a fine of Rs. 10,00,000/- and customs duty of Rs. 5,77,983/-. Personal penalties were imposed on several individuals, including Rs. 6,00,000/- on the passenger under Section 112(b), Rs. 3,00,000/- on another individual, Rs. 1,00,000/- on an advocate, and Rs. 50,000/- on a customs officer under Section 112(a).

3. Admissibility and Validity of Statements Recorded under Sections 107 and 108 of the Customs Act:
The passenger's statements recorded under Sections 107 and 108 were crucial in establishing the intent to smuggle goods for monetary gain. The statements revealed frequent trips to Dubai and attempts to sell goods in India at higher prices. The investigation also uncovered a network involving other individuals and customs officials facilitating the smuggling activities.

4. Procedural Delays and the Right to Appeal:
The appellant faced procedural delays in receiving the order-in-original, which affected the filing of the appeal. The order was initially sent by registered post but returned unserved. The appellant filed an application under the RTI Act and a writ petition to obtain the order copy, which was eventually provided on 15-11-2007. The appeal was filed on 19-11-2007, within the permissible period from the date of service of the order. The court found the delay in providing the order copy by the respondents to be unreasonable and allowed the appeal, remitting the matter back to the Commissioner Appeal for a decision on merits.

Conclusion:
The court set aside the orders of the Commissioner Appeal and the Appellate Tribunal, remitting the matter back to the Commissioner Appeal to decide on the merits, considering the appeal to be filed in time. The decision emphasized the importance of timely communication of orders and the right to a fair appeal process. The court clarified that it did not enter into the merits of the adjudicating authority's order and directed the Commissioner Appeal to decide independently within two months.

Final Judgment:
The appeal was allowed, and the matter was remitted back to the Commissioner Appeal to restore the appeal to its original number and decide it on merits, considering it to be filed within the stipulated time. The Commissioner Appeal was directed to take an independent decision expeditiously, preferably within two months from the date of receipt of the certified copy of the court's order.

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