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TMI Blog1988 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... uto; and allowing Integrated Circuits and Transistors to be redeemed on payment of a fine of Rs.2,00,000 and the Air conditioners and Compressors on a fine of Rs. 3,000 besides duty, and imposing a penalty of Rs. 2,00,000 each on appellants Anil Mansaramani, Sunil Desai and Ralph D Couto, and Rs. 25,000 each on appellants Vikramamurthy and Srikant Jha; and a penalty of Rs. 5,000 on appellant Adrian D Couto under Section 112 of the Customs Act, 1962, the Act for Short. 3. On 21-9-1985 on the basis of information the Customs authorities were keeping a close surveillance on the air parcels coming from the city booking office and also from the authorised agents of Indian Airlines at the Indian Airlines Cargo Office, Meenambakkam. The authorities at about 7.00 P.M. on that day noticed 3 air parcels being unloaded from M/s. Lemuir Air Express for onward loading into Indian Airlines containers. The authorities intercepted the parcels and examined the same. The parcels were consigned to M/s. Tristar Enterprises, Nehru Place, New Delhi, and declared as components valued at Rs.1000/- under air consignment note No.6501848 dated 21-9-1985. The authorities examined the consignments and fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ralph D Couto and also the officers who recorded the statements. It was urged that notwithstanding the fact that reliance has been placed against appellant Anil Mansaramani in the said two statements recorded from Ralph D Couto, no opportunity was given to appellant Anil Mansaramani to cross-examine Ralph D Couto or the officers who recorded the statements. The learned counsel, therefore, assailed the impugned order as violative of the principles of natural justice. The learned counsel further submitted that in the context of the case on grounds of violation of natural justice while setting aside the impugned order the appeal may not be remitted for reconsideration at this distance of time as it would result in great hardship and prejudice to his client. It was further contended that the impugned order has been passed by the adjudicating authority being conscious of the fact that appellant Anil Mansaramani was denied of an opportunity of cross-examination of Ralph D Couto and others and in such a situation a remand is not warranted at all and the appeal should be disposed of without reference to the inculpatory statements of Ralph D Couto. 5. Shri Habibullah Badsha, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely no evidence of any kind in any way connecting his clients with the commission of any offence in relation to the goods under seizure. Shri Ganapathy further submitted that even in regard to the past transactions His clients have not played any role in regard to the same and, therefore, prayed that the penalty imposed on his clients should be set aside. 7. Shri Vibhushanan, the learned counsel for appellant Ralph D Couto submitted that he is not contesting the appeal on merits and merely pleaded for reduction in the quantum of penalty. The learned counsel urged that his client Ralph D Couto was hauled up as a detenu under COFEPOSA on 4-6-1986 and was languishing in jail for about 1 year and 6 months till after he was released in November, 1987. The learned counsel further urged that Ralph D Couto was one of the partners in a firm under the name Maritime India Services having Custom House Licence and has also been removed from the partnership and is practically without a job. The learned counsel further urged that the only role played by his client was to act as a middleman in receiving the goods from Singapore and facilitating onward transmission of the same to others at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for personal hearing on 25-8-1986 before the Additional Collector of Customs. The learned Senior D.R. urged that even though under law appellant Anil Mansaramani would be entitled to ask for cross-examination of Ralph D Couto on whose statement reliance has been placed against the appellant under the impugned order as also the officers who recorded the statement of Ralph D Couto, if after repeated attempts Ralph D Couto could not be procured, the Department cannot be blamed. The learned Senior D.R. in this context submitted that Ralph D Couto was languishing as a detenu in jail and repeatedly wrote to say that he was not in a fit condition to appear for personal hearing to defend his case nor to stand the cross-examination. The learned Senior D.R. further urged that Preventive Officer, Prabhakaran could not be made available as he had gone on leave for his marriage. However, the learned Senior D.R. urged that the appeal cannot be disposed of ignoring the statements of appellant Ralph D Couto. It is a fundamental proposition of law that when reliance is placed penal proceedings against a person on third party statements and the person concerned seeks to avail himself of an opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amani an opportunity to cross-examine Ralph D Couto and other officers he has specifically asked for cross-examination. 11. We shall now take up the appeal of Sunil Desai. The substance of the accusation against appellant Sunil Desai has been set out in the show cause notice in para 35 and 36, which for purpose of convenience and better appreciation is hereunder extracted verbatim:- By Clause 3 of Imports (Control) Order, 1955, (as amended) issued in pursuance of Section 3(2) of imports and Exports Act, 1947 read with Section 11 (2)(u) of Customs Act, 1962, the Import of the Integrated Circuits, Transistors, Car Air-Conditioners and compressors and the Video Camera of foreign origin totally valued at Rs.6,68,600/- (CIF) as detailed in the annexures to the Mahazars, without a valid Import Trade Control Licence is prohibited. Under Section 123 of Customs Act, 1962 the onus of proving that the goods viz. Transistors are not smuggled is cast on the party from whose possession they were seized and also on the person who claim ownership thereof. In the absence of any such licence issued by the Import Trade Control Authorities the import of the above mentioned Integrated Circuits, Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no connection between Sunil Desai and the goods under seizure, the investigation has revealed that Sunil Desai in collusion with Sri Ralph D Couto had imported these car air-conditioners in the manner explained above. There is no bar in initiating penal proceedings once the complicity comes to light. We are not able to appreciate this observation the learned adjudicating authority. The charges set out in the show cause notice and (traded above clearly proceed on the basis of the goods under seizure concerned in case. In such a situation, when the adjudicating authority himself has clearly found that there is no connection between appellant Sunil Desai and the goods under seizure, would not be proper or legal to fasten him with penalty on the ground that Sunil Desai was concerned in or connected with earlier transactions in the year 1984 in regard to which admittedly there is no specific charge in the show cause notice. Show cause notice in adjudication proceedings serves a very solitary purpose and the charge which a person is called upon to meet must be precise and specific. In the present case though in the show cause notice an incidental reference is made to the past a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1984, but unfortunately, since there is no clear investigation in regard to the same and since the materials that could have been unearthed by proper investigation have not been done by the authorities and since accusations by way of a specific charge in regard to the same with clear details have not been made in the show cause notice, we have no other alternative except to exonerate him by giving him the benefit of doubt in the facts and circumstances of this case. 13. So far as appellants Vikramamurthy and Srikant Jha are concerned the circumstances we have set out and the reasons we have given in giving the benefit of doubt in exonerating appellant Sunil Desai would equally apply to these appellants as well and adopting the same by giving them the benefit of doubt we exonerate them from the charges and allow their appeals. ; 14. So far as appellant Ralph D Couto is concerned we find that he was a COFEPQSA detenu languishing in jail for about 1 year and 6 months his appeal is not contested on merits. The circumstances of this case clearly indicate that he was only playing the role of a middleman in arranging the onward transmission of goods received by him by illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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