2003 (12) TMI 248 - AT - Customs

Summary

Issues Involved:
1. Improper investigation and missing links in the act of smuggling.
2. Reliability of the computer printout showing telephone calls.
3. Non-supply and reliance on certain documents not mentioned in the Show Cause Notice (SCN).
4. Non-supply of requested documents by the department.
5. Abscondence of the accused and its implications.
6. Allegations of bias and malice against the Customs officers.

Detailed Analysis:

1. Improper Investigation and Missing Links:
The Commissioner found the investigation to be flawed with many missing links, leaving room for defense arguments that the accused were innocent. Key details such as who collected the foreign currency, who transported the contraband to the airport, and who actively assisted in the smuggling attempt were not established. The person occupying the seat in question was not interrogated, and one of the accused was absconding and not apprehended. The appellant's argument of improper investigation was deemed maintainable before the law.

2. Reliability of the Computer Printout:
The appellant contested the authenticity of a computer printout showing telephone calls made by Sitaram Naik from a hospital. The original authority failed to verify these entries with the Telecom Department. The absence of corroborative evidence and the failure to address the appellant's alibi weakened the department's case. The Commissioner noted that without disproving the passport entries, it was difficult to comment on the appellant's presence during the calls.

3. Non-supply and Reliance on Certain Documents Not Mentioned in the SCN:
The appellant argued that reliance on the statement of P. Abdul Majeed, which was not supplied to the defendant, was illegal. The statement played a pivotal role in the original authority's findings but was not mentioned in the SCN or the list of relied-upon documents. This lapse was considered a denial of natural justice, rendering the impugned order null and void.

4. Non-supply of Requested Documents:
The appellant claimed that certain requested documents were not supplied by the department. However, the Commissioner found that the document in question was not crucial to the findings of the original authority. The non-supply of this document did not vitiate the adjudication proceedings.

5. Abscondence of the Accused and Its Implications:
The Revenue argued that the abscondence of the respondent indicated a guilty mind and involvement in unlawful activities. However, the Commissioner found that the investigation was interrupted due to the accused not making themselves available for questioning. The appeal noted that the accused had moved for anticipatory bail but did not face the investigating agency.

6. Allegations of Bias and Malice Against the Customs Officers:
The appellant highlighted a criminal case registered against Customs officers by Ali Mohammed and his wife for alleged physical assault and molestation. This case was registered prior to the present case and suggested possible bias or malice. The Commissioner emphasized that the material implicating Ali Mohammed should be unquestionable and make a watertight case, given the alleged animosity.

Conclusion:
The Commissioner upheld that the investigation had significant lapses and lacunae, including the failure to corroborate statements and the improper handling of evidence. The alibi of Ali Mohammed and the contradictions in the statements of co-accused Sitaram Naik led to the conclusion that there were no grounds to overturn the Commissioner's findings. Consequently, the Revenue's appeal was dismissed, and the Commissioner's order was upheld.