2021 (3) TMI 1138 - HC - Customs

Levy of penalty u/s 112(a) of Customs Act, 1962 - retraction of statements of the co-accused particularly when at the time of remand the Hon'ble Magistrate had specifically noted that the statements were recorded under threat and coercion - retraction of statements of the co-accused without independent corroboration - scope of SCN upon certain call records which were not relied upon in the show cause notice issued to the appellant under Section 124 of the Customs Act, 1962 - reliance upon call records given by the mobile service provider without the mandatory certificate that is required to be issued under Section 138C of the Customs Act, 1962. HELD THAT - If an order passed by an appellate Tribunal is a perfunctory order, if the Tribunal fails to consider the evidence being the final fact finding authority, if it has not discussed or analysed the moot point before it, then such order would call for interference. The first appellate authority agreed with the Adjudicating Authority that the contention of the appellant that he was not permitted to cross examine the witnesses was not tenable. Thereafter, the Commissioner (Appeals) had considered the contention that the statements of the other witnesses were retracted. While dealing with the said issue, it has noted that there are extensive corroborative evidences, which clearly point towards the appellant. Favouritism shown to the IEC holder - HELD THAT - The Revenue did not prefer any appeal against the said finding. Thus, the Adjudicating Authority has discussed the factual position and arrived at a conclusion and imposed penalty. The findings recorded by the Adjudicating Authority especially with regard to the modus operandi were reconsidered by the first appellate authority and the findings were confirmed, but partial relief was granted to the appellant by deleting the penalty under Section 114AA of the Act. The concurrent finding of facts were tested by its correctness by the Tribunal. The Tribunal has re-appreciated the evidence and agreed with the finding of the Adjudicating Authority, which was confirmed by the first appellate authority. Therefore, we do not agree with the submissions made on behalf of the appellant that the order is a perfunctory order and it did not consider the evidence placed before it. Therefore, the decisions relied on by the learned counsel would not render any assistance to the case of the appellant - this appeal does not raise any question of law, much less substantial question of law for consideration, as the entire matter is fully on facts and the order passed by the Tribunal would not require any interference in exercise of the power under Section 130G of the Customs Act. Appeal dismissed.

Issues Involved:
1. Applicability of Section 112(a) of the Customs Act, 1962 for imposing penalty.
2. Reliance on retracted statements of co-accused.
3. Use of call records not mentioned in the show cause notice.
4. Absence of mandatory certificate under Section 138C of the Customs Act for call records.
5. Denial of cross-examination of witnesses.
6. Allegation of non-speaking order by the Tribunal.

Detailed Analysis:

1. Applicability of Section 112(a) of the Customs Act, 1962:
The appellant argued that Section 112(a) of the Act, which relates to penalties for improper importation of goods, was not applicable since he did not commit or omit any act that would render the goods liable for confiscation under Section 111. The Tribunal and lower authorities disagreed, noting that the appellant's involvement in the smuggling operation through his Security Service Agency was evident from the call records and statements of co-accused. The Tribunal concluded that the appellant’s actions fell within the ambit of Section 112(a) as he abetted the smuggling activities.

2. Reliance on Retracted Statements of Co-Accused:
The appellant contended that the Tribunal erred in relying on retracted statements, which were allegedly obtained under coercion, as noted by the Judicial Magistrate. The Tribunal found that no retraction was made at the time of personal hearing, and therefore, the statements remained unassailed. The Tribunal upheld the Adjudicating Authority's reliance on these statements, supported by corroborative evidence such as call records and forensic reports.

3. Use of Call Records Not Mentioned in the Show Cause Notice:
The appellant argued that the Tribunal relied on call records not mentioned in the show cause notice, thus traversing beyond its scope. The Tribunal and lower authorities examined the call records extensively and found them to be integral to establishing the appellant's involvement. The Tribunal held that the call records were part of the evidence considered by the Adjudicating Authority and were essential in linking the appellant to the smuggling activities.

4. Absence of Mandatory Certificate Under Section 138C of the Customs Act:
The appellant claimed that the call records were inadmissible as they lacked the mandatory certificate under Section 138C of the Customs Act. The Tribunal did not find merit in this argument, noting that the call records were corroborated by other evidence and statements, making the certificate's absence non-detrimental to the case.

5. Denial of Cross-Examination of Witnesses:
The appellant argued that he was denied the right to cross-examine the panchanama witnesses, which violated principles of natural justice. The Tribunal noted that the appellant did not seek cross-examination during the personal hearing and only requested expedited orders. The Commissioner (Appeals) had also addressed this issue, stating that the Mahazar was signed by multiple witnesses, ensuring its credibility.

6. Allegation of Non-Speaking Order by the Tribunal:
The appellant contended that the Tribunal’s order was non-speaking and lacked detailed reasoning. The Tribunal, however, provided a comprehensive analysis of the evidence, including call records, statements, and the modus operandi of the smuggling operation. It concurred with the findings of the Adjudicating Authority and the Commissioner (Appeals), concluding that the appellant's involvement was clearly established.

Conclusion:
The Tribunal's decision was upheld as it was found to be well-reasoned and based on substantial evidence. The appeal was dismissed, with the court concluding that no substantial question of law arose for consideration. The Tribunal's order was not deemed perfunctory or devoid of reasons, and the findings of the lower authorities were confirmed.

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