2019 (8) TMI 337 - AT - Customs

Smuggling - contraband gold - gold concealed under seat No.12A and disembarkment at Mumbai leaving the said gold in the aircraft itself making arrangements to retrieve the same - imposition of penalty - HELD THAT - The original authority has examined all the material facts and the statements given by the appellants before the Custom Officer wherein they have clearly confessed their guilt. Further, the Commissioner (A) has also considered all the submissions raised by the appellants before him regarding their defence and after considering the entire evidence, the Commissioner (A) has rightly come to the conclusion that appellant No. II (Rajendra Prakash Pawar) is the key conspirator and mastermind in the illegal activity of contraband gold. He is the sole investor of money and who has sponsored in procuring the contraband gold into India through carriers supposedly arranged by Shri Abdullah in Dubai. The Commissioner (A) further observed that he devised entire plan and put in place all suitable arrangements to execute the illegal act by dubious way of concealing the impugned goods to the seats allotted to the carrier and appellant-I and III have aided and abetted the illegal activity on payment of hefty remuneration. The contention of the learned counsel for the appellant saying that the appellants were not subjected to cross-examination is not tenable in law because the appellants never retracted their statements at any point of time and in their original statements made before the Customs Officer under Section 108, they have clearly admitted their involvement in smuggling activity on payment of remuneration - The versions of the appellants given before the Customs Officer were also proved from their WhatsApp communication. The appellants have admitted their involvement in smuggling the contraband gold and therefore, they have been rightly imposed penalty under Section 112(a) of the Customs Act, 1962 - appeal dismissed - decided against appellant.

Issues Involved:
1. Legality of penalty imposed under Section 112(a) of the Customs Act, 1962.
2. Admissibility of statements obtained under Section 108 of the Customs Act, 1962.
3. Reliance on WhatsApp communications as evidence.
4. Burden of proof under Section 123 of the Customs Act, 1962.
5. Requirement for cross-examination under Section 138B of the Customs Act, 1962.

Detailed Analysis:

1. Legality of Penalty Imposed Under Section 112(a) of the Customs Act, 1962:
The appellants were penalized under Section 112(a) for their involvement in smuggling gold. The Original Authority imposed penalties of ?22,57,868 on one appellant and ?11,28,934 each on the other two. The Commissioner (A) upheld these penalties, concluding that the appellants were co-conspirators in the smuggling activity. The Tribunal affirmed this decision, finding no infirmity in the impugned order.

2. Admissibility of Statements Obtained Under Section 108 of the Customs Act, 1962:
The appellants contended that their statements were obtained under duress and coercion, making them inadmissible. However, these statements were never retracted, and the appellants admitted their involvement in smuggling activities. The Tribunal found that the statements were voluntary and corroborated by WhatsApp communications. The Tribunal cited the Kerala High Court's decision in K.P. Abdul Majeed, which held that confession statements of co-accused could be treated as evidence if corroborated by other materials.

3. Reliance on WhatsApp Communications as Evidence:
The WhatsApp messages were crucial in establishing the appellants' involvement in smuggling. The appellants argued that these messages could not be relied upon without meeting the conditions under Section 65B of the Information Technology Act, 2000. However, the Tribunal found that the WhatsApp communications corroborated the appellants' statements and the overall smuggling scheme. The Tribunal dismissed the appellants' contention, noting that the WhatsApp messages were part of a chain of events repeated multiple times.

4. Burden of Proof Under Section 123 of the Customs Act, 1962:
The appellants argued that the burden of proof to establish whether the seized goods were smuggled lay with the owner or the person in possession of the goods. Since the appellants were neither, they contended that the penalty was unjustified. However, the Tribunal found that the appellants' involvement was sufficiently established through their statements and corroborating evidence, shifting the burden of proof onto them, which they failed to discharge.

5. Requirement for Cross-Examination Under Section 138B of the Customs Act, 1962:
The appellants argued that their statements should not be relied upon as they were not subjected to cross-examination. The Tribunal dismissed this argument, noting that the appellants never retracted their statements and admitted their involvement. The Tribunal emphasized that the appellants' statements, corroborated by WhatsApp communications, were sufficient to establish their guilt without the need for cross-examination.

Conclusion:
The Tribunal upheld the penalties imposed on the appellants under Section 112(a) of the Customs Act, 1962, finding that their involvement in smuggling was sufficiently established through voluntary statements and corroborating WhatsApp communications. The Tribunal dismissed the appeals, affirming the findings of the Original Authority and the Commissioner (A).

← Previous Next →