2005 (7) TMI 250 - AT - Customs

Smuggling of the silver - confiscation - Penalty - Adjudication - No opportunity for cross-examination to the witnesses - Violation of principles of natural justice - Proof regarding letting out of the premises - HELD THAT - As noted, all the noticees including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employee of the appellant Ashish Kumar Chaurasia and the statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with prohibited silver and were liable to imposition of penalty u/s 112 of the said Act. In such a situation insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up . It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justice. It is clear to us from the statements of Ram Avatar Singhal, Ram Kishore Mishra, Ram Bilas Mandal and Ram Kumar Kashyap that the appellant Ashish Kumar Chaurasia, alias Pappu doodhwala was involved in concealing the silver ingots of foreign origin in his dairy premises and he used to give such ingots to Ram Avatar Singhal for getting them melted and sold for which he used to pay the agreed amount to Ram Avatar Singhal. The appellant Ram Avatar Singhal used to send the converted contraband silver to Delhi in the vehicles in which concealed cavities were made for the safe transport of the contraband goods. The appellant Ram Avatar Singhal used to depute Jagdish Shanker Trivedi, alias 'Jijaji' who was a lawyer along with his driver for transporting the contraband silver to Delhi for its disposal. He also used to send his friend Ram Kishore Mishra for transporting the silver to Delhi. Both the drivers were engaged for trips to Delhi for the said purpose. Ram Avatar Singhal was melting the ingots in his refinery, from where also, 14 ingots and one lump of silver were recovered on 18-12-1992 itself when both the vehicles in which the contraband silver was being carried were intercepted at Kanpur and at Ghaziabad near Delhi. Thus, we are fully satisfied that the learned Commissioner of Central Excise was right in confiscating the seized goods and imposing the penalties on the appellants under the impugned order. The contentions raised on behalf of the appellants do not warrant any interference with the impugned order. All the appeals are, therefore, dismissed. Interim relief, if any, stands vacated.

Summary

Issues Involved:
1. Confiscation of silver ingots and slabs.
2. Imposition of personal penalties.
3. Allegations of smuggling and illegal possession.
4. Violation of principles of natural justice.
5. Reliability and voluntariness of statements recorded under Section 108 of the Customs Act.

Detailed Analysis:

Confiscation of Silver Ingots and Slabs:
The Commissioner of Central Excise, Kanpur, ordered the confiscation of 79 silver ingots weighing 2640.277 Kgs., valued at Rs. 1,75,60,169/-, recovered from the premises of "Doodh Ki Dairy" under Section 111(d) of the Customs Act. Additionally, 25 silver slabs weighing 373.365 Kgs., valued at Rs. 24,82,877.20, were confiscated from a Maruti Van, and another 25 silver slabs weighing 374.5 Kgs., valued at Rs. 24,90,425/-, were confiscated from a Maruti Gypsy. Fourteen silver slabs and one silver "thakia" (lump) were seized from the melting unit of M/s. Ram Avatar Naresh Kumar, weighing 223.230 Kgs. and valued at Rs. 14,77,829.50, under Section 111(d) read with Section 120 of the Customs Act. The vehicles and the cast/mould used for melting were also confiscated under Sections 118, 119, and 115(2) of the Act.

Imposition of Personal Penalties:
The Commissioner imposed personal penalties under Section 112(b) of the Customs Act on eight individuals, including the appellants. Penalties of Rs. 2.5 crores each were imposed on Ashish Kumar Chaurasia alias Pappu Doodhwala and Ram Avatar Singhal. Ram Kishore Mishra and Jagdish Shankar Trivedi were penalized Rs. 5 lacs each, while Dilip Kumar Singhal was penalized Rs. 50 lacs.

Allegations of Smuggling and Illegal Possession:
Based on information received by the Directorate of Revenue Intelligence, the authorities intercepted vehicles and conducted searches that led to the recovery of foreign-marked silver ingots and slabs. Statements recorded under Section 108 of the Customs Act indicated that the silver was smuggled and concealed in various locations, including the dairy premises of Ashish Kumar Chaurasia. The recovered silver was found to be of .999 purity, confirming its foreign origin and smuggled nature.

Violation of Principles of Natural Justice:
The appellants contended that they were denied the opportunity to cross-examine witnesses, violating the principles of natural justice. However, the Tribunal noted that ample opportunities were provided for personal hearings, and the appellants had cross-examined two officers. The refusal of co-noticees to be cross-examined on the grounds of self-incrimination under Article 20(3) of the Constitution was upheld, and the Tribunal found no violation of natural justice.

Reliability and Voluntariness of Statements:
The Tribunal held that the statements recorded under Section 108 of the Customs Act were voluntary and truthful, despite subsequent retractions. The consistency and corroboration of the statements with the recovery of contraband silver from different locations and the involvement of the appellants were established beyond doubt. The Tribunal relied on the confessional statements, which were binding on the appellants, and upheld the findings of the Commissioner.

Conclusion:
The Tribunal dismissed all the appeals, upholding the confiscation of the seized goods and the imposition of penalties on the appellants. The contentions raised by the appellants were found to be without merit, and the interim relief, if any, was vacated.