2010 (3) TMI 1067 - HC - Customs

Principles of Natural Justice - cross-examination of witnesses - section 108 of Customs Act - illegal exports of goods

Issues Involved:
1. Admissibility and sufficiency of evidence under Section 108 of the Customs Act.
2. Procedural compliance and natural justice.
3. Onus of proof and burden of establishing smuggling activities.
4. Perverse findings by the Tribunal.
5. Correctness of the confiscation and penalty imposed.

Issue-wise Detailed Analysis:

1. Admissibility and Sufficiency of Evidence under Section 108 of the Customs Act:
The appellant contended that the statements of four witnesses recorded under Section 108 of the Customs Act adequately implicated the respondent. The statements are considered admissible evidence as per the Act. The Supreme Court's judgment in Bhana Khalpa Bhai Patel vs. Assistant Collector of Cus., Bulsar, was cited to support the admissibility of such evidence. The respondent's failure to appear for cross-examination was highlighted, emphasizing that the statements made under Section 108 were sufficient to establish the respondent's culpability.

2. Procedural Compliance and Natural Justice:
The respondent argued that the prescribed procedure was not followed, and he was not allowed to cross-examine the witnesses. The court observed that the respondent was issued multiple summonses (five times) but failed to appear. The court noted that the principles of natural justice were observed, as the respondent was informed of all the materials against him and given opportunities to defend himself. The court emphasized that the respondent's persistent disobedience to the summons weighed against him, and his failure to appear for cross-examination was his own fault.

3. Onus of Proof and Burden of Establishing Smuggling Activities:
The court referred to the Supreme Court's judgment in Collector of Customs, Madras vs. D. Bhoormull, which stated that the burden of proving that goods are smuggled lies with the department. However, the law does not require proof with mathematical precision; a prudent man's estimate of the probabilities of the case is sufficient. The court found that the department had adequately discharged its burden by providing sufficient evidence and establishing a high degree of probability that the goods were meant for smuggling.

4. Perverse Findings by the Tribunal:
The court criticized the Tribunal for its perfunctory approach and sweeping observations that there was no material to connect the respondent with the illegal export of goods. The Tribunal's findings were deemed perverse, as they ignored the detailed examination and concurrent findings of the first authority and the Commissioner of Appeals. The court emphasized that the High Court could interfere with the Tribunal's findings if they were found to be perverse based on the materials on record.

5. Correctness of the Confiscation and Penalty Imposed:
The first authority and the Commissioner of Appeals had found that the respondent was the consignor and consignee of the goods and was attempting to smuggle them to Nepal. The goods were intercepted in Raxaul, a town notorious for smuggling activities, at an unearthly hour, which further supported the suspicion of smuggling. The court agreed with the findings of the first authority and the Commissioner of Appeals that the respondent was liable under the Act. The confiscation of goods, the Thela, and the motorcycle, along with the imposition of a cash penalty of one lakh rupees on the respondent, were upheld.

Conclusion:
The appeal was allowed, the order of the Tribunal was set aside, and the order of the Commissioner (Appeals) was restored. The court found that the department had adequately discharged its burden of proof, and the respondent's failure to appear for cross-examination and disobedience to summonses weighed against him. The confiscation and penalty imposed were deemed appropriate, and the Tribunal's findings were considered perverse. No orders as to costs were made.

← Previous Next →