2014 (4) TMI 803 - HC - Customs

Imposition of penalty - Misdeclaration of goods - Abetment in pilferage Valuation of the goods - Retraction of statement u/s 108 of the Customs Act Condonation of Delay Hospitalisation after bail Conduct of Accused - Whether there was compulsion, persuasion or coercion in giving a statement under section 108 - Held that - The earliest opportunity to retract the statement was the time when he was produced before the Magistrate concerned, before whom he could have stated that his statement was recorded either under coercion, threat or exertion - But no such complaint whatsoever came to be made - Though learned counsel for the appellant tries to bring on record a statement dated 8.4.2005 said to have been sent to the department denying voluntary statement u/s 108, no material is found indicating in fact this statement or letter dated 8.4.2005 was sent to the department - In the absence of acknowledging the statement dated 8.4.2005 by the department, the only retraction is by way of reply dated 17.12.2005 - Therefore, Commissioner was justified in opining that retraction was an afterthought and he did not make use of the earliest opportunity to do so when he was produced before the Magistrate concerned - Learned counsel tried to impress this Court that out of fear, he might not have declared so before the Magistrate - Even if it is so, a prudent and reasonable thinking person would not wait till April, 2005 to do so - If his illness was the cause for delay, it appears, he was hospitalised only for two weeks after release on bail - None of the arguments justifies the delay so far as retraction of statement. Opportunity of being heard - Section 124 Held that - The procedure for confiscation of goods and also imposition of penalty, it only indicates a summary proceedings and no detailed enquiry of any nature - Issuance of show cause notice and reply dated 17.12.2005 are admitted facts - Whatever he wanted to say as defence, was indicated in the reply dated 17.12.2005 and the same was analysed with reference to the facts found on record - Therefore, there is no denial of any opportunity - Substantial justice is extended by reducing the fine of 2,00,000 to 20,000 having regard to the involvement of the appellant This Court is of the opinion, whatever leniency he deserves, is already meted out to him at the hands of Tribunal - Accordingly, no reason to interfere Decided against appellant.

Summary

Issues:
Misdeclaration of goods in a consignment imported from UAE, involvement of the appellant as a manager of a Customs House Agency, imposition of penalty under the Customs Act 1962, fairness of the proceedings, retraction of statement made under Section 108 of the Customs Act, adequacy of opportunity to present a defense.

Analysis:
The judgment revolves around a case concerning the misdeclaration of goods in a consignment imported from UAE, leading to the imposition of a penalty under the Customs Act 1962. The appellant, who was the manager of a Customs House Agency, was found guilty of abetting the misdeclaration of goods by the consignee. The Tribunal confirmed the penalty but reduced it from 2,00,000 to 20,000 considering the circumstances. The appellant argued that he was not given a fair opportunity to cross-examine witnesses and that his statement was not properly considered. However, the Tribunal found him involved in the misdeclaration, rejecting his objections and defense.

The High Court analyzed the proceedings, noting that the appellant's statement was recorded, and he was found to have abetted the act of pilferage. The Court observed that the appellant did not retract his statement promptly, raising questions about the timing and genuineness of the retraction. The Court also addressed the fairness of the proceedings, emphasizing that the appellant had the opportunity to present his defense, which was duly considered. Ultimately, the Court upheld the Tribunal's decision to reduce the penalty, stating that the leniency granted was sufficient, and declined to interfere, thereby dismissing the appeal.

In conclusion, the judgment highlights the importance of adherence to legal procedures, the significance of timely actions such as retracting statements, and the need for a fair opportunity to present a defense in matters involving penalties under the Customs Act. The Court's decision underscores the balance between imposing penalties for violations and ensuring procedural fairness in adjudicating such cases.