2021 (1) TMI 1050 - HC - Customs

Levy of Penalty - levy on the basis of the retracted statement without any independent corroborative - acquitting the appellant from all charges, valid or not - Whether on the facts and in the circumstances of the case the honourable Tribunal was right in sustaining the penalty on the appellant and the co-accused were discharged from all charges and in the adjudication proceedings? - HELD THAT - Upon examination of the evidence, the Adjudicating Authority found that the confessional statement is true. Furthermore, the appellant could not establish that the statement recorded from him on 11.03.1998 was obtained by threat, duress or promise. The burden of proof to show that the statement was recorded under threat, duress was on the appellant, which he had failed to discharge. Therefore, the Adjudicating Authority, having done a proper exercise in examining the statements and all other evidences, which were available before him, adjudicated the case and held the appellant's statement dated 11.03.1998 to be true. Furthermore, the appellant was present when the search and seizure operations were conducted. The statement of the other two persons, who were employed by the appellant clearly implicate the appellant with regard to the attempt to export prohibited items. Furthermore, it has been established that the appellant was aware of the fact that sandalwood is a prohibited item for export - there is no procedural error committed by the Adjudicating Authority and the Adjudicating Authority, after analysing the statement recorded from the independent witnesses, has rightly held that the appellant is guilty. Considering the facts and circumstances of the present case, more particularly, when the present case arises under the provisions of the Act, the appellant cannot place reliance on the decision in the case of CAPT. M. PAUL ANTHONY VERSUS BHARAT GOLD MINES LTD. ANR. 1999 (3) TMI 625 - SUPREME COURT which was the matter concerning the service condition of the appellant therein. The said decision is wholly inapplicable to the case on hand. The Tribunal, which is the last fact finding forum, has re-appreciated the factual matrix and rendered a finding that on the date when the officers of the Department conducted search operations in the godown at Tuticorin, the appellant was present and the cartons, which were lying in the godown, when opened, were found to contain sandalwood concealed along with Mangalore Roofing Tiles. Further, the admissibility of the statement recorded under Section 108 of the Act from the appellant on 11.03.1998, was considered by the Tribunal and it was held that the said statement is admissible and the belated retraction was rightly rejected by the Adjudicating Authority. Furthermore, the Tribunal found, on facts, that the role of the appellant has been clearly brought out by the fact that the appellant was present in the godown, at the time of search, when the officers detected the concealment of the sandalwood along with the Mangalore Roofing Tiles. There are no hesitation to hold that there is no question of law, much less any substantial question of law arising for consideration in this appeal - appeal dismissed.

Summary

Issues Involved:

1. Whether the Tribunal was right in imposing a penalty on the appellant based solely on a retracted statement without independent corroborative evidence.
2. Whether the Tribunal erred in not considering the appellant's acquittal by the criminal courts.
3. Whether the Tribunal was justified in sustaining the penalty on the appellant when the co-accused were discharged from all charges.

Issue-wise Detailed Analysis:

1. Imposition of Penalty Based on Retracted Statement:

The appellant challenged the Tribunal's decision to impose a penalty based on a retracted statement. The Tribunal reduced the penalty from ?25 Lakhs to ?15 Lakhs. The appellant's initial statement on 11.03.1998 admitted involvement in smuggling sandalwood, which was later retracted through letters dated 01.06.1998 and 01.07.1998. The Adjudicating Authority found the retraction belated and upheld the initial statement, corroborated by other evidence, including statements from Kalkan and Selvaraj. The Tribunal affirmed this, noting the appellant's presence during the search and the discovery of sandalwood concealed with roofing tiles. The Tribunal held that the retraction did not invalidate the initial confession, which was supported by other evidence.

2. Consideration of Acquittal by Criminal Courts:

The appellant argued that the Tribunal should have considered his acquittal by the criminal courts. The Tribunal noted that the acquittal was reversed by the Madurai Bench of the High Court, which convicted the appellant and others. The Tribunal emphasized that the Adjudicating Authority could independently proceed with penalty imposition without awaiting the outcome of criminal proceedings. The Tribunal re-evaluated the facts and upheld the penalty, finding substantial evidence against the appellant, including his presence during the search and the corroborative statements from other witnesses.

3. Sustaining Penalty Despite Co-Accused Being Discharged:

The appellant contended that the penalty was unjust as the co-accused were discharged. The Tribunal's decision to impose a penalty on the appellant was based on his significant role in the smuggling operation, as evidenced by his presence during the search and his initial confession. The Tribunal noted that the order in the case of Janar, who filed the shipping bill, was reversed by the High Court, reinstating the penalty. The Tribunal found that the appellant's actions and involvement were distinct and warranted the penalty, despite the discharge of co-accused.

Conclusion:

The Tribunal's decision was upheld, affirming the penalty based on the appellant's initial confession corroborated by other evidence, despite the retraction and acquittal in criminal proceedings. The appeal was dismissed, with no substantial question of law arising for consideration.