2000 (7) TMI 335 - AT - Customs

Summary

Issues Involved:
1. Liability for penalty under Section 112(a)(i) and 112(b)(i) of the Customs Act, 1962.
2. Knowledge and involvement in the import of concealed silver.
3. Voluntariness and admissibility of statements made by the appellant.
4. Right to access and inspect seized documents for defense.

Issue-wise Detailed Analysis:

1. Liability for penalty under Section 112(a)(i) and 112(b)(i) of the Customs Act, 1962:
The Commissioner found that M/s. Harish Metind Pvt. Ltd. and its Director, Harish Peshawaria, conspired with others to import brass scrap concealing 1870.100 kgs of silver, thereby violating Sections 111 and 119 of the Customs Act, 1962. This rendered the silver liable for confiscation under Section 111(d) and the brass scrap under Section 119. Consequently, both Harish Peshawaria and Bharat Dattani were held liable for penalties under Sections 112(a)(i) and 112(b)(i) of the Customs Act, 1962.

2. Knowledge and involvement in the import of concealed silver:
The Commissioner concluded that Harish Peshawaria was aware of the silver concealed in the consignment due to various circumstantial evidence, such as the elaborate precautions taken for its storage, repacking, and transportation to Mathura instead of Jamnagar. Despite Bharat Dattani's initial denial, it was established through his statements and corroborative evidence that he knew the consignment contained silver and was actively involved in its clearance, storage, repacking, and transportation. The Commissioner found that Bharat Dattani's actions were consistent with his knowledge of the contraband silver.

3. Voluntariness and admissibility of statements made by the appellant:
The Supreme Court in K.I. Pavunny [1997 (90) E.L.T. 241 (S.C.)] held that retracted confessions could be relied upon if found to be voluntary and true. The Commissioner did not make a specific finding on the voluntariness of Bharat Dattani's statements, which is crucial for determining their admissibility. The Tribunal noted the absence of such a finding and emphasized the need for a thorough examination of the statements' voluntariness.

4. Right to access and inspect seized documents for defense:
The Tribunal highlighted that Bharat Dattani was denied access to certain seized documents, which could be vital for his defense. The investigating officer's stipulation that the "DRI DEPARTMENT IS NOT RELYING UPON THE SAID SEIZED DOCUMENTS FROM SHRI PESHAWARIA TO THESE PROCEEDINGS" was deemed insufficient to deny access. The Tribunal stressed that documents not relied upon by the prosecution but in possession of the department must be made available to the defense if requested.

Conclusion:
The Tribunal allowed the appeal as a remand, setting aside the impugned order and remanding the matter back to the Commissioner. The Commissioner was directed to allow the cross-examination of the investigating officer and inspection of the seized documents by Bharat Dattani or his representatives. After these steps, the Commissioner was to re-evaluate the facts, determine the voluntariness of the statements, and decide the matter as per law.