1985 (11) TMI 232 - AT - Customs

Summary

Issues Involved:
1. Reliance on retracted statements of co-accused.
2. Burden of proof and proper evidence.
3. Disproportionate penalty.
4. Plea of alibi and findings of criminal courts.
5. Consideration of exculpatory statements and adverse inference for non-examination of witnesses.
6. Applicability of Section 123(2) and burden of proving smuggled goods.
7. Final conclusions and confirmation of penalties.

Issue-wise Detailed Analysis:

1. Reliance on retracted statements of co-accused:
The appellants contended that the Board erred in relying on the statements of co-accused which were subsequently retracted. The Tribunal noted that the statements of the drivers and other occupants were recorded immediately after the interception of the vehicles. These statements implicated the appellants in instructing the transport of contraband goods. The Tribunal held that the retractions were belated and did not wipe out the initial statements. It was also observed that the proceedings before the adjudicating authority are not criminal trials, and the drivers cannot be considered co-accused but, at best, accomplices whose evidence, if corroborated, can be relied upon.

2. Burden of proof and proper evidence:
The appellants argued that the burden of proof was wrongly placed on them and that the findings were not based on proper and reliable evidence. The Tribunal held that the burden of proving the plea of alibi was on the appellants. The Customs authorities had discharged their initial burden by providing evidence of the drivers' statements and the ownership of the vehicles. The appellants failed to provide convincing evidence to support their alibi.

3. Disproportionate penalty:
The appellants claimed that the penalty imposed was disproportionate to the value of the smuggled goods. The Tribunal did not find merit in this contention, as the penalties were imposed based on the involvement of the appellants in the smuggling activities and their previous involvements, which justified the penalties.

4. Plea of alibi and findings of criminal courts:
The appellants contended that they were not at the location of the seizure and that the findings of the criminal courts, which discharged one of the appellants, should be binding on the quasi-judicial authority. The Tribunal held that prosecution and adjudication are independent proceedings, and the findings of criminal courts are not binding on quasi-judicial authorities. The plea of alibi was considered and rejected by the Additional Collector, and the Tribunal found no error in this finding.

5. Consideration of exculpatory statements and adverse inference for non-examination of witnesses:
The appellants argued that the Board erred in relying on exculpatory statements and should have drawn an adverse inference for the non-examination of Rajendra Kumar Vasantlal. The Tribunal held that the statements of the drivers were not exculpatory and that the non-examination of Rajendra Kumar did not affect the findings, as the ownership of the car was corroborated by other evidence.

6. Applicability of Section 123(2) and burden of proving smuggled goods:
The appellants contended that the goods seized were not those mentioned in Section 123(2), and therefore, the burden was on the department to establish that they were smuggled goods. The Tribunal held that this contention was irrelevant as the appellants neither claimed ownership of the goods nor contended that the goods were licitly imported into India.

7. Final conclusions and confirmation of penalties:
The Tribunal, after considering all aspects and evidence afresh, concluded that there was no reason to interfere with the order passed by the Additional Collector and confirmed by the Board regarding the imposition of penalties on the appellants. The appeals were rejected.

Conclusion:
The Tribunal upheld the penalties imposed on the appellants, rejecting their contentions regarding the reliance on retracted statements, burden of proof, plea of alibi, and the findings of criminal courts. The Tribunal found that the evidence provided by the Customs authorities was sufficient and corroborated, and the appellants failed to discharge their burden of proving the plea of alibi. The appeals were dismissed.