1990 (1) TMI 211 - AT - Customs

Issues Involved:
1. Admissibility of statements recorded under Section 108 of the Customs Act.
2. Jurisdiction of the Additional Collector to adjudicate.
3. Pecuniary jurisdiction of the adjudicating authority.
4. Imposition of redemption fine under Section 125 of the Customs Act.
5. Constitutionality of Section 115 of the Customs Act.
6. Binding effect of High Court judgments on the Tribunal.

Detailed Analysis:

1. Admissibility of Statements Recorded Under Section 108 of the Customs Act:
The applicants questioned whether Section 138-B(2) of the Customs Act, 1962, renders statements recorded under Section 108 inadmissible if the persons making those statements were not examined in chief before the adjudicating authority. The Tribunal relied on the statements of two drivers recorded under Section 108 during the investigation, which were corroborated by other evidence. The applicants argued that these statements should not be given evidentiary importance as they were recorded during the investigation and not during the adjudication process. The Tribunal, however, did not follow the Gujarat High Court's judgment in Union of India v. Abdul Kadar Abdulgani Hasmani, which held that statements under Section 108 could only be recorded after the initiation of an inquiry for confiscation or penalty, as indicated by a show cause notice under Section 124.

2. Jurisdiction of the Additional Collector to Adjudicate:
The applicants contended that the High Court of Gujarat had directed the Collector of Customs (Preventive) to adjudicate the case afresh, and therefore, only the Collector could re-adjudicate, not the Additional Collector. The Tribunal noted that no objections were raised before the Additional Collector or the Tribunal regarding this issue, and it was conceded that the Additional Collector has the same jurisdiction as the Collector.

3. Pecuniary Jurisdiction of the Adjudicating Authority:
The applicants questioned whether the adjudicating authority had the pecuniary jurisdiction to adjudicate the case. The Tribunal noted that this point was also not raised before the Additional Collector or the Tribunal, and it was conceded that the point need not be referred to the High Court.

4. Imposition of Redemption Fine Under Section 125 of the Customs Act:
The applicants argued that the Tribunal was not justified in imposing a redemption fine double the actual value of the vehicle. The Tribunal noted that the question regarding the quantum of redemption fine is a pure question of fact and need not be referred to the High Court.

5. Constitutionality of Section 115 of the Customs Act:
The applicants contended that Section 115 of the Customs Act is ultra vires Articles 19(1)(g) and 300A of the Constitution of India, and also ultra vires entry 83, List I of the Seventh Schedule to the Constitution of India. The Tribunal noted that this ground was not urged before it and that this forum was not appropriate for such a challenge.

6. Binding Effect of High Court Judgments on the Tribunal:
The Tribunal is an All India Tribunal, and it must take a consistent view. While decisions of the Supreme Court are binding, divergent views of different High Courts pose a challenge. The Tribunal followed the decisions of other High Courts and the Supreme Court rather than the Gujarat High Court's decision. The Tribunal sought guidance from the High Court of Gujarat on the binding effect of High Court judgments when the Tribunal's jurisdiction extends to areas under multiple High Courts with divergent views.

Conclusion:
The Tribunal decided to refer the matter to the High Court of Gujarat for clarification on the following points:
1. Whether the Tribunal erred in relying on statements recorded under Section 108 of the Customs Act prior to the issuance of a show cause notice under Section 124, and whether the Gujarat High Court's judgment in Union of India v. Abdul Kadar Abdulgani Hasmani is a good law.
2. The binding effect of a High Court judgment on the Tribunal when its jurisdiction covers areas under multiple High Courts with divergent views.

The Tribunal emphasized the need for a clear legal framework to resolve these issues, given their significant impact on the investigations and inquiries under the Customs Act, 1962.

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