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TMI Blog1985 (1) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ned absent on the date of hearing. Therefore, Shri Pattekar who appeared for the respondent was heard. 5. The brief facts necessary for the disposal of these appeals may be stated as under: On 14-3-1976 the Customs Intelligence Officers found two suitcases exceptionally heavy and unclaimed lying in the baggage section. On examination of the Airway Bills it was found out that one of the baggage was the unaccompanied baggage of Lilaram Bhojwani and the other was the unaccompanied baggage of one Shri Hotchand. Though the Airway Bills were in the names of Lilaram Bhojwani and Hotchand, their addresses were shown as C/o. Nathani and Hasmukh Shah, respectively. Efforts were made to locate Shri Nathani and Shri Hasmukh Shah. Shri Nathani denied having known Lilaram Bhojwani. Shri Hasmukh Shah who is the appellant in Appeal No. 315/80 stated that he had known Hotchand and had met him at Dubai and that he had come to know Hotchand through one Shri Motumal Udhavdas who was married to Hotchand s sister. He further stated, that the Airway Bill received at his address was handed over by him to Hotchand. He also undertook to produce Hotchand. Thereafter, the unaccompanied baggage of Shri Hot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked him to introduce some passengers who would bring foreign articles from Dubai for which he would be willing to spend Rs. 5,000/-. He, therefore, introduced Shri Kanayalal to Shri K.B. Aswani. He further stated that Kanayalal had given him an Airway Bill to be handed over to Aswani and he had handed over to Aswani on or about 19-3-1976. Shri Khetsi further stated that Kanayalal, appellant Hasmukh Shah, Hotchand and himself had met in Room No. 6 of Diamond Hotel and had discussed various issues and one of them was regarding Rs. 35,000/- which was given by Hasmukh Shah to Shri Kanayalal. Hasmukh Shah had informed Kanayalal that Rs. 5,000/- out of Rs. 35,000/- was from Aswani, Rs. 20,000/- belonged to Kanayalal and the balance Rs. 10,000/- belonged to Hasmukh Shah and himself (Khetsi). Shri Khetsi also identified Shri K.B. Aswani as an officer whom he had met at the Air Cargo Unit and Diamond Hotel. It was also in the statement of Khetsi that through Kanayalal he had come to know that Shri K.B. Aswani had paid him Rs. 5,000/-for the purchase of goods at Dubai. Shri Khetsi also stated that he and the appellant Hasmukh Shah had gone to Dubai and they had also come to Airport on 10-4- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unaccompanied baggage for sale in India on profit. It was further alleged that Kanayalal, Hasmukh Shah, K.B. Aswani, C.B. Aswani, Hotchand, Lilaram Bhojwani, Jayantlal, Deepak Balani, and Nathani unauthorisedly imported the goods in contravention of the Import Trade Control Regulations or abetted the unauthorised import. All the above persons were directed to show cause as to why the seized goods should not be confiscated and why personal penalty should not be imposed on them. 15. The Additional Collector who held the enquiry on consideration of the material placed before him ordered confiscation of the seized goods and also imposed a penalty of Rs. 15,000/- each on the appellants, Shri Hasmukh Shah, K.B. Aswani and Rs. 10,000/- on the appellant Shri C.B. Aswani, besides Rs. 10,000/-, Rs. 15,000/-, Rs. 3,000/- and Rs. 20,000/- on Hotchand, Khetsi, Jayantlal and Kanayalal, respectively. 16. Feeling aggrieved by the orders the present appellants and the others preferred appeals before the Board. The Board by two separate orders referred to above rejected the appeals. As stated earlier the revision applications filed by the appellants before the Government of India stood transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Rs. 5,000/- for getting the foreign goods. Shri Pattekar therefore, prayed that the appeal of Shri Shah may be rejected. 19. As has been stated earlier Shri K.B. Aswani was not represented during the hearing of the appeal. In his revision application filed before the Government he had raised the following contentions: (I) He was discharged by the Additional Chief Metropolitan Magistrate. (II) He produced certain orders of the Board by which the Board set aside the personal penalty on the appellants on being acquitted by the Criminal Court. (III) He also relied on the decision of the Madras High Court. In support of his contention that where there are parallel proceedings before the Courts as well as quasi-judicial bodies, the decision of the Courts would be binding and should be respected by all quasi-judicial authorities. 20. The appellant, Shri C.B. Aswani was also not represented on the date of hearing. In the revision application filed before the Government of India this appellant urged the following grounds: (i) The Customs Authorities initiated the criminal proceedings and 11 witnesses were examined in the prosecution but they could not even prove the prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie case made out against the appellant and in the said circumstances levy of penalty under Section 112 of the Customs Act cannot be upheld. 23. This Bench of the Tribunal (West Regional Bench) is situated within the territorial jurisdiction of the High Court of Bombay. The judgments of the High Court of Bombay in the absence of judgment of the Supreme Court to the contrary are binding on this Bench. The question regarding binding effect of the finding of Criminal Court in an adjudication proceeding came up before the Bombay High Court more than once and in the latest judgment of the Bombay High Court in Writ Petition No. 1004 of 1981 decided on February 12, 1985. The Division Bench of the Bombay High Court considered the submissions similar to the submissions made by Shri Mehta and the other appellants. After referring to the judgment of the Madras High Court in Shaik Kasim v. Supdt. Post Office A.I.R. 1965 Madras 502 rejected the contention of Shri Parkar, the Advocate who appeared for the petitioner in the said Writ Petition. The contention urged was that since the petitioner had been acquitted on merits by the Trial Court and the said acquittal had been confirmed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of acts or omissions referred to therein. The procedure with regard to adjudication of confiscation and penalties is expressly provided for in Section 122 of the Act. The power to be exercised by the Collector of Customs or Deputy Collector of Customs or by an Assistant Collector of Customs or by Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs in accordance with the value of the goods liable to confiscation. The procedure to deal with confiscation or imposition of penalty is prescribed in Section 124 and under that provision a notice in writing has to be given to the concerned person informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty, and he is to be given a reasonable opportunity of being heard in the matter. Then comes Section 127 which expressly provides that even though an order of confiscation and an order of penalty is made by the Customs Officer that does not affect the liability to punishment under the provision of Chapter XVI or under any other law. We already reproduced the provisions of Section 135 make it pointedly clear that the power to prosecute under Section 135 is without prej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) there is no independent evidence to hold that any of the accused tried to import any dutiable articles or they were concerned with them. (4) it is well established principle of law that the statements of co-accused can be used, at the most, for the purpose of lending support to an independent conclusion arrived on the strength of independent evidence. (5) that he had gone through the statement of the accused by finding out whether they contain any confessions which can be used against the concerned accused. He did not find any confession, worth the name, which can be used to hold any accused guilty for the offence. 26. Now it is well settled that the provisions of the Evidence Act or the provisions of Criminal Procedure Code as such are inapplicable to adjudication proceedings. The concept of co-accused is alien to an adjudication proceedings. A proceeding before the adjudicating authority is not a criminal trial. If the show cause notice was issued to more than one person, the persons may stand as co-respondents or at best accomplices and not co-accused. The evidence that might have been adduced before the Magistrate may be different from the material available to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant Shri K.B. Aswani it is true that he did not admit the allegations made in the show cause notice. But then the statements of Hasmukh Shah and Khetsi clearly implicated the appellant Shri K.B. Aswani. As has been stated earlier the show cause notice not only dealt with the two unaccompanied unclaimed baggages but also with the past acts and conduct of Shri K.B. Aswani and others. Shri Khetsi in his statement had referred to the statement of Hasmukh Shah with regard to the payment of Rs. 35,000/- made to Kanayalal who was one of the persons employed to bring smuggled goods from Dubai. According to the statement out of Rs. 35,000/-, Rs. 5,000/- was contributed by Shri K.B. Aswani. Shri Khetsi further stated that Shri K.B. Aswani had asked him to introduce passengers who would bring foreign articles from Dubai for which he would be willing to pay Rs. 5,000/-. He, therefore, introduced Shri Kanayalal to Shri K.B. Aswani. Further Kanayalal had given him an Airway Bill to be handed over to Aswani and he had handed over to Aswani on or about 19-3-1976. During the course of investigation the residence of Shri K.B. Aswani was searched under a search warrant and when the officers we ..... 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