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TMI Blog1990 (1) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements recorded under Section 108 of the Customs Act as inadmissible, as none of the persons whose statements were so relied upon, were examined in chief before the adjudicating authority. (b) Whether it was permissible for the Additional Collector to adjudicate the case, where the High Court of Gujarat, vide its order dated 28-1-1986 in Sp. C. A. No. 3870 of 1985 directed the Collector of Customs (Preventive) to adjudicate afresh. (c) Whether, even otherwise, it was within the pecuniary jurisdiction to adjudicate the case. So far as applicants Smt. Rajiben and Ors (Ref. Appln. No. 21/88 are concerned, additional grounds raised are: (a) Whether .the Tribunal was justified in imposing the redemption fine under Section 125 of the Customs Act, to the extent of double the actual value of the vehicle. (b) Whether the provisions of Section 115 of the Customs Act, are ultra vires Articles 19(1)(g) and 300A of the Constitution of India and also ultra vires entry 83, List of Seventh Schedule to the Constitution of India. 5. To give a brief resume of the facts involved in the present proceedings, so far as they relate to both the applicants here, one Truck GRD 4008 driven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) GLR 1146, which has not been followed by the Tribunal as well as the adjudicating authority. The Tribunal has preferred to follow other judgments, as discussed in the impugned order. 7. Shri D.G. Trivedi, the learned advocate for the applicants in both the applications, initially submitted that Section 138B(2) of the Customs Act, provides for applicability of the provisions contained in sub-section (1) to any proceedings under the Act, and submitted that the same would cover even the adjudication proceedings and then argued that for acceptance of statements recorded under Section 108 of the Customs Act, the requirements of Section 138B(1), namely non-availability of the person making the statement on account of death or other incapacities specified therein, has to be complied with, and otherwise, the person had to be examined by the adjudicating authority and permitted to be cross-examined by the delinquent. In the instant case however that is not done. When enquired as to whether the point was urged before the Tribunal, the learned advocate fairly conceded that it was not and then submitted that this, therefore, being a question not arising out of the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the same is bound by the decision of the High Court of Gujarat, and that consequently the Tribunal too, has to adjudicate the matter in the same context. He also submitted that even otherwise, the view taken by the High Court of Gujarat is based on the decision of the Supreme Court in Balkrishna Soni v. State of West Bengal - AIR 1974 S.C. 120 = 1983 (13) E.L.T. 1527 (S.C.). The learned advocate submitted that though this particular point has not been explicitly pleaded in the application, the said point arises out of the Tribunal s order, and was specifically urged before the Tribunal, and hence may be referred to the High Court of Gujarat. 9. So far as the two points pleaded in the matter of applicant Rajibai and others (Ref. Appln. No. 21/88), the learned advocate conceded that the question re: quantum of redemption fine is a pure question of fact and so far as vires of statutory provision are concerned, the same being not the ground urged, and this being not a proper forum, none of them need be referred to the High Court of Gujarat in reference under Section 130 of the Customs Act. 10. Shri K.M. Mondal, the learned SDR for the Department appeared in Ref. Appln. No. C/21/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under Sec. 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Sec. 193 and Sec. 208 of the Indian Penal Code (45 of 1860)." Considering the scheme of the Customs Act, the Sec. 108 is incorporated in Ch. XIII having the heading searches, seizure and arrest. This Chapter commences from Sec. 100 and concludes with Sec. 110. Chapter XIV, incorporates Secs. 111 to 127 and has the Chapter heading Confiscation of Goods and Conveyances and imposition of penalties , where Sec. 124 provides for issue of show cause notice before confiscation of goods and imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court as discussed by us a little earlier. It appears from the observations made by the Supreme Court in the case of Balkrishna v. State of West Bengal (supra), which we have extracted in this judgment that the stage of recording of statements under Sec. 108 arises only when an inquiry is started either for confiscation of the goods or for imposing penalty. This is very clear from the wordings of Sec. 108 of the Act. So far as Sec. 107 is concerned, it takes care of investigatory emergencies, as observed by the Supreme Court. There is nothing on record to show that any inquiry was started either for confiscation of the goods or for imposition of penalty. Sec. 111 of the Act gives a list of goods which are liable to confiscation. Sec. 112 prescribes penalties for contraventions of the provisions of the Act, while Sec. 113 also lays down as to which goods are liable to confiscation. Sec. 124 of the Act, which we have reproduced in the earlier part of this judgment, requires that before an order confiscating any goods or imposing any penalty is passed, a notice is required to be given in writing informing the person concerned of the grounds on which it is proposed to confiscate the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur humble opinion the provisions of Sec. 108 are inserted in the family of the provisions pertaining to searches, seizure and arrest (Chapter XIII) whereas provisions of Sec. 124 form part of Chapter XIV dealing with confiscation of goods and conveyance and imposition of penalties . The provisions of Sec. 124 put an embargo on the powers of the authorities specified in Sec. 122 of the Act, to pass any order of confiscation and/or personal penalty without issuing of a show cause notice, and availing of the opportunity to the concerned party of being heard. What appears to have been contemplated under Sec. 124, is mere granting of the opportunity to the person against whom the order is proposed to be passed, to be heard and make a representation against the evidence collected by the department against him. Of course, the authority adjudicating is bound to consider the representation and oral submission made by such party into consideration, and arrive at the just conclusion, on the totality of circumstances brought on record both by the department and the person concerned, but the same does not appear to be contemplating holding of a trial, as is envisaged under Civil and Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd at par with the Statement recorded by a Police officer. In a criminal trial, the statements of the witnesses, have to be recorded by the Magistrate, as their statements before the Police officers are not admissible by virtue of Sec. 162 of the Criminal Procedure Code. Statements under Sec. 108 of the Customs Act, are however treated as admissible. If Sec. 108 contemplates recording of the statements in the enquiry (in our humble opinion, it is not the enquiry but adjudication as is spelt out from the wordings of Sec. 122 of the Customs Act) after issue of show cause notice under Sec. 124 of the Act, then it would be the evidence recorded in presence of the delinquent and there could be no need to specifically provide for their admissibility. In our humble view, this also leads to indicate that the stage of recording of the statement under Sec. 108 should precede and not succeed the issue of show cause notice under Sec. 124. 20. Considering the scheme of the Act, Sec. 108 precedes Sec. 110 which authorises the proper officer to seize the goods, documents and things. Sec. 108, besides recording of the statement, also contemplates issue of summons for production of documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter under reference, also, the same situation has arisen, where the Tribunal having not followed the decision of the High Court of Gujarat has chosen to follow the decisions of other High Courts. 24. It is therefore desired that the Hon ble High Court of Gujarat may also provide an appropriate guideline, as to the course to be followed by the Tribunal under such circumstances. 25. Under the circumstances, we grant the prayer of the applicants to refer the matter to the Hon ble Court of Gujarat, as the incident alleged has occurred in the State of Gujarat and initial adjudication is by the Ahmedabad Collectorate of Customs, for appropriate direction on the following points : 1. Whether the Tribunal has erred on facts and law in holding and relying upon the statements of the witnesses purported to have been recorded under Sec. 108 of the Customs Act, prior to issuance of the show cause notice under Sec. 124 of the Customs Act, and, if not, whether the judgment of the High Court of Gujarat in Union of India v. Abdul Kadar Abdulgani Hasmani and Others (Criminal Appeal No. 798 of 1979 with Criminal Appeal Nos. 889 of 79,1257 of 79 and 1260 of 79 - decided on 2-5-1984 - Cora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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