2019 (3) TMI 425 - HC - Customs

Penalty u/s 112(a) and (b) of the Customs Act - smuggling of Gold - territorial jurisdiction - scope of Customs Act beyond the territory of India - mandatory procedure prescribed under section 138B of the Customs Act, 1962 - uncorroborated statements of co-accused - ex-parte order - principles of natural justice - Held that - On getting the show cause notice, the appellant sent a letter to the Commissioner of Central Excise Customs on 01.10.2014. In that reply, he has mentioned that the documents referred to in the notice, and stated to be relied upon by the prosecution, were not handed over to him. The allegations against him of having arranged for smuggling of gold through Karipur Airport with the aid of Navas and Shafeeq in Dubai, and of Abdul Basheer, his friend, at Calicut Airport, is also denied by the appellant. He has denied having any connection with Navas and Shafeeq or arranging gold for smuggling through Altaf. He denies having any acquaintance with Navas or Shafeeq. It is also pointed out that neither Altaf nor Abdul Basheer, who were apprehended in this connection, could give any whereabouts of Shafeeq or Navas, and therefore, without identifying those persons who have admittedly contacted the passenger Altaf or Manoj, it would not have been possible to connect the appellant to the alleged act of smuggling. The appellant had produced documentary proof of the fact that the telephone number spoken to by the witnesses as his, belonged to someone else. But the authority had concluded that the mobile number belongs to him relying solely upon the statements of Basheer and Shamsudhin. Going through the entire Annexure H order of the Adjudicating Authority, we do not find anything concrete to rope the appellant in the alleged smuggling of gold, but for the recorded statements of persons, who were directly involved. The Adjudicating Authority here has relied on the statements recorded under Section 108 without affording an opportunity to the appellant to cross-examine them. In the reply to the show cause notice filed by the appellant, he has specifically requested for the witnesses to be cross-examined, and therefore, the Adjudicating Authority was bound to follow the mandatory procedure prescribed in Section 138B of the Act. Without having done so, the order is not sustainable - appeal allowed.

Issues Involved:
1. Justification of penalty under sections 112(a) and (b) of the Customs Act.
2. Mandatory procedure under section 138B of the Customs Act.
3. Basis of penalty on uncorroborated statements.
4. Ex-parte imposition of penalty without opportunity to contest.
5. Show Cause Notice and territorial jurisdiction.
6. Tribunal’s decision application of mind and alleged perversity.

Detailed Analysis:

1. Justification of Penalty under Sections 112(a) and (b) of the Customs Act:
The appellant challenged the imposition of penalty under sections 112(a) and (b) of the Customs Act, arguing that the provisions of the Customs Act, 1962 do not extend beyond the territory of India. The Tribunal and lower authorities assumed the appellant’s involvement in smuggling operations based on statements from co-accused, which the appellant contested as unreliable and contradictory. The court found that there was no independent evidence linking the appellant to the smuggling activities, except for the statements of those directly involved, which were retracted.

2. Mandatory Procedure under Section 138B of the Customs Act:
The appellant argued that the Original Authority failed to follow the mandatory procedure under section 138B of the Customs Act, which requires examination of witnesses whose statements are relied upon. The court noted that the appellant was not given an opportunity to cross-examine the witnesses, which is a serious procedural lapse. The court emphasized the necessity of cross-examination to ensure the veracity of the statements, citing precedents like Andaman Timber Industries v. Commissioner of Central Excise and M/s Kanungo and Co. v. Collector of Customs, Calcutta.

3. Basis of Penalty on Uncorroborated Statements:
The appellant contended that the penalty was imposed based on uncorroborated statements of co-accused without any independent material evidence. The court observed that the statements of Altaf, Abdul Basheer, and Manoj, which implicated the appellant, were retracted and lacked corroboration. The court highlighted the absence of direct evidence connecting the appellant to the smuggling activities and criticized the reliance on contradictory statements.

4. Ex-parte Imposition of Penalty without Opportunity to Contest:
The appellant claimed that the penalty was imposed ex-parte without affording an opportunity to contest the case on merits. The court found that the Tribunal proceeded with the appeal in the absence of the appellant, despite notice. The court underscored the importance of providing a fair opportunity to the appellant to present his case, which was denied in this instance.

5. Show Cause Notice and Territorial Jurisdiction:
The appellant argued that the Show Cause Notice did not establish that he was within the territory of India during the relevant period. The court noted that the Customs authorities assumed the appellant’s involvement based on statements from co-accused, without concrete evidence of his presence in India. The court found the allegations in the Show Cause Notice insufficient to justify the penalty.

6. Tribunal’s Decision Application of Mind and Alleged Perversity:
The court raised an additional question regarding the Tribunal’s decision, questioning whether it was made without application of mind and was perverse. The court concluded that the Tribunal failed to consider the procedural lapses and lack of independent evidence, leading to an unjustified imposition of penalty. The court set aside the impugned order, allowing the appeal and directing that the proceedings, if recommenced, should provide the appellant an opportunity to cross-examine the deponents.

Conclusion:
The court found in favor of the appellant on all issues, highlighting significant procedural lapses, reliance on uncorroborated statements, and denial of a fair opportunity to contest the case. The impugned order imposing the penalty was set aside, and the appeal was allowed, with directions for recommencement of proceedings with proper procedural adherence.

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