2023 (10) TMI 387 - HC - Customs

Levy of penalty u/s 114AA of the Customs Act, 1962 - Smuggling - Red Sanders - appellant have not made, signed or use any declaration, statement or document pertaining to alleged illegal export when all the activities regarding this export was carried out by the exporter and his Clearing House Agent - opportunity for cross-examination provided or not - violation of principles of natural justice - Jurisdiction of High Court. HELD THAT - Retraction does not always dilute, reduce or wipe out the evidentiary value of a confession statement. In each case, the court will have to examine whether the confession was voluntary and true and whether the retraction was an afterthought. In Smt.Kalawati and Another v. State of H.P. 1953 (1) TMI 31 - SUPREME COURT , the Apex Court held that the amount of credibility to be attached to a retracted confession would depend upon the facts and circumstances of each case. In Shankaria v. State of Rajasthan 1978 (4) TMI 234 - SUPREME COURT , it was held that where the confession was not retracted at the earliest opportunity but after the lapse of several months, the circumstance reinforces the conclusion that the confession was voluntary. The appellant's confession statements under Section 108 were recorded on 18/3/2015 and 19/3/2015, whereas the alleged retraction was made on 26/5/2015. There is no explanation for the delay. Coming to the facts of the case, except the bare allegations, there was no material on record to indicate that the customs officials had pressurised or forced the appellant to confess. On the other hand, the records show that the officer who recorded the statements of the appellant explained to him that he was under no obligation to answer any question and warned him that anything he said might be used against him in any court of law/proceedings - The sequence of events as described, statements of the co-accused, recovery of smuggled goods and incriminating documents coupled with circumstantial evidence of the case provide corroboration to the confession statement of the appellant. The evidence on record establishes that the smuggling syndicate coordinated by the appellant misused the IEC of the exporter, M/s. Liberty Marketing to smuggle out Red Sanders, an item prohibited for export - the ingredients of Sections 144 and 144AA of the Customs Act are squarely attracted. The High Court s jurisdiction under Section 130 of the Customs Act is limited. It is not within the domain of the High Court in an appeal under Section 130 of the Customs Act to reappreciate the fact on which the findings were arrived at by the Tribunal, the final fact-finding authority. True, a finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence or while arriving at the said finding, relevant admissible evidence has not been taken into consideration, or inadmissible evidence has been taken into consideration, or legal principles have not been applied in appreciating the evidence or when the evidence has been misread - the adjudicating authority, the appellate authority, and the Tribunal appreciated the facts and evidence on record in the correct legal perspective and rightly found that the appellant was liable to penalty under Sections 144 and 144AA of the Customs Act The quantum of penalty imposed also appears to be reasonable - Appeal dismissed.

Summary

Issues Involved:
1. Imposition of penalty under Section 114AA of the Customs Act, 1962.
2. Adjudication authority's compliance with natural justice principles.
3. Right to cross-examine witnesses in quasi-judicial proceedings.

Summary:

1. Imposition of Penalty under Section 114AA:
The appellant, a proprietor of a freight forwarding company, was involved in the illegal export of Red Sander logs, a prohibited item. The Directorate of Revenue Intelligence (DRI) seized 11,178 kgs of Red Sanders from a container declared to contain plywood. The investigation revealed the appellant's active role in the smuggling operation, including arranging logistics and facilitating customs clearance. The adjudicating authority imposed a penalty of Rs. 5,00,000/- each under Sections 114 and 114AA of the Customs Act, which was later reduced to Rs. 2,50,000/- each by the CESTAT. The court upheld the penalty, stating that the appellant's actions met the criteria for penalties under Sections 144 and 144AA.

2. Compliance with Natural Justice:
The appellant argued that the investigation and adjudication violated natural justice principles, particularly the denial of cross-examination of the investigating officer and co-accused. The court found that cross-examination is not a right in quasi-judicial proceedings and that the adjudicating authority has the discretion to allow or deny it. The court noted that the appellant's confession, recorded under Section 108 of the Customs Act, was voluntary and truthful, despite his later retraction, which was deemed an afterthought.

3. Right to Cross-Examine:
The court reiterated that in proceedings under the Customs Act, the right to cross-examination is not absolute. Citing precedents, the court held that the denial of cross-examination did not violate natural justice principles. The appellant's request for cross-examination was denied to prevent the co-accused from incriminating themselves. The court found that the adjudicating authority, appellate authority, and Tribunal had correctly appreciated the facts and evidence, and the denial of cross-examination was justified.

Conclusion:
The High Court dismissed the appeal, confirming the Tribunal's order and the penalties imposed. The court found no substantial question of law to warrant interference under Section 130 of the Customs Act, emphasizing that the findings were based on sufficient evidence and proper legal principles.