9911796707
TMI Blog1991 (1) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... . The brief facts leading to the above seizure is to the effect that intelligence was gathered by officers of the Directorate of Revenue Intelligence, Zonal Unit, Calcutta, that one Md. Masood @ Masood Chowdhury of New Delhi, one Md. Amin @ Amin Bhat of Delhi and one J.K. Singh @ Daryami purchased about 70,000 pcs. of snake skins through one Khurshid Alam of Calcutta and sought to clandestinely export a portion i.e. 15 pcs. post parcels to West Germany. These snake skins which were sought to be smuggled out of India belonged to one Sewakram Godhwani of 105, Park Street, Calcutta and was booked by one Ashok Chawla of Indralok Housing Estate. On the basis of this information the officers of Customs, Calcutta, along with D.R.I. Officers intercepted on 5-10-1981 nine export post parcels at Calcutta G.P.O. parcel booking counter No. 3 and six export post parcels from inside G.P.O. parcel bag No. 1 and 2 at Calcutta Air Sorting Division, Calcutta. The consignor's name as written on the post parcels was M/s. Globe Trading Company, 50, Chowringhee Road, Calcutta-16 and the consignee's name was shown as (1) M/S. FOLSCHE KREFTING STR 20, D2800 BREMEN, WEST GERMANY, (2) M/S. ACHIM - OBERN WES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-1982 and 22-4-1982. The statements of Kishore Godhwani, Khurshid Alam, Md. Amin, Md. Masood, J.K. Singh and Smt. Rita Singh were also recorded by the Customs authorities under Section 108 of the Customs Act, 1962. The gist of these statements were incorporated in the show cause notice in detail. The parties concerned including appellant filed replies to the show cause notice and they were afforded personal hearing. After adjudication, the learned Collector came to the conclusion that these barked tanned snake skins were liable to confiscation under Section 113(d), (h), and (i) of the Customs Act, 1962. A personal penalty of Rs. 5,000/- was imposed on the appellant on the ground that the appellant was taking bribe from unscrupulous gangs and abetted the smuggling of the abovesaid snake skins to a foreign country and actively assisted the participants in the illegal act. Being aggrieved by the abovesaid decision, the appellant has filed the present appeal. 5. During the course of the hearing, Shri Dipak Deb, learned Barrister appearing for the appellant filed an application stating that certain additional documents are also required for deciding the abovesaid case. In this connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had taken LTC and he was not responsible for this offence. It was also contended that the identification parade was held and one person Khurshid Alam identified the appellant as Bose. It was also contended that it was for the first time the above named Khurshid Alam identified the appellant and the appellant had not seen him earlier at all. Mr. S.P. Choudhury of SRI Administration brought that person to identify the appellant. He also contended that on 26-8-1982 the appellant wrote a letter to the Assistant Collector of Customs for Preventive Adjudication requesting for supply of documents and statements of Md. Amin, Khurshid Alam, Swapan Kr. Roy, R.N. Biswas, T.K. Das and others, but the copies of the same were not given to the appellant before the adjudication order and this has violated the principles of natural justice. Shri Deb, learned Counsel, also contended that the show cause notice is not in accordance with the law. He pointed out certain sentences in the show-cause notice, wherein it was stated that the appellant was found guilty of an offence under Section 140 of the Customs Act. Shri Deb pointed out that the object of the show cause notice is to give the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, therefore, contended that R.N. Biswas and T.K. Das never met Amin @ Aftab Ahmed in Airport Hotel. Shri Deb further vehemently argued before us that the learned adjudicating authority failed to appreciate the fact that the appellant never had the privilege of owning or using a scooter bearing No. WBZ 5212 and this falsifies the allegation of Khurshid Alam that he received an intimation from Amin over phone that one Mr. Bose would come to meet him in a scooter bearing No. WBZ 5212 after giving a ring to whom Khurshid Alam paid Rs. 35,000/-. He also contended that the appellant never had subscribed to any telephone No. 52-3223 and, therefore, Amin contacting the appellant from Delhi at this telephone cannot be believed. It was also contended before us that the adjudicating authority failed to appreciate that the appellant during the period 26-9-1981 to 18-10-1981 was on leave and had actually left for Dehradun by Punjab Mail on 26-9-1981 and returned by Air from Delhi on 18-10-1981. It was also contended that the appellant could not travel by rail for want of ticket. During his LTC period he travelled by air for the return journey and to prove that fact the ticket of appellant's m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plinary proceedings have no relevance for the adjudication proceedings and that document which contained the order of the disciplinary authority cannot be admitted. He also contended that the statement given by Shri R.N. Biswas and Shri T.K. Das and Shri S.K. Roy before the adjudicating authority are not evidence in this case as they were examined after the adjudication proceedings. It was also contended that no case has been made out for admission of these additional evidences. 9. Shri Biswas further contended that there was no violation of the principles of natural justice in this case. He contended that the gist of the statements of all these witnesses, copies of whose statements were required by the appellant, were mentioned in the show cause notice. He contended that the appellant has not shown as to how he was prejudiced by not supplying the copies of these statements, when, in fact, the gist of the statements were furnished to the appellant in the show cause notice itself. In this connection, Shri Biswas pointed out that in the last portion of the show cause notice it was stated by the Assistant Collector that the appellant, if he so desires, may on any working day during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he received an intimation of Shri Amin over phone that one Mr. Bose would come to meet him in a scooter bearing No. WBZ 5212 after giving a ring to him and thereafter Khurshid Alam paid Rs. 35,000/- to Mr. Bose and he identified the appellant as Mr. Bose to whom he paid Rs. 35,000/-. Shri Biswas also contended that Khurshid Alam had clearly stated that this amount was paid in front of the gate of Minerva Hotel in between 6.30 p.m. and 7 p.m. as had been instructed to him. It was in this connection the identification of the appellant as Mr. Bose by Khurshid Alam becomes significant. Shri Biswas also pointed out that at the parade held in Custom House on 13-2-1982 Khurshid Alam identified the appellant among 13 persons as Mr. Bose to whom he had paid Rs. 35.000/. In this connection, he drew our attention to the statement of S.K. Roy who stated that during the month of April, 1981 the appellant came to Air Sorting Office at Calcutta Airport and proposed to him that he should clear certain air parcels belonging to his friends and requested him to meet one Mr. Merchant to discuss the matter. He also contended that his statement goes to show that the appellant furnished his telephone N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant did not go up in appeal against this order but the learned Central Board of Excise & Customs wanted to review this order on the ground that it was lenient and on that count the appellant had approached the Central Administrative Tribunal and that order of the Board for reviewing the case was stayed by the Central Excise Administrative Tribunal. Further, it is a fact that this order was not in possession of the appellant when the adjudication proceedings were conducted. So also the certificate dated 15-9-1970 and also confindential remarks of Shri P.G. Pal, Asstt. Collector of Customs appreciating the work of the appellant also cannot be said to be irrelevant. The statement of certain witnesses taken during the disciplinary proceedings cannot be stated to be an evidence in the adjudication proceedings. Those documents are not admissible in this case. The evidence of a witness taken in one proceedings cannot be used as admissible evidence in a different proceedings. This evidence had come into existence after the adjudication proceedings and that too in a totally different proceedings against the appellant which was termed as disciplinary proceedings. In the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the appellant that there were certain allegations in the show cause notice indicting the appellant guilty of the offence, which, according to him, is not in accordance with the law. In this connection, he drew our attention to that part of the show cause notice, as found in pages 112 and 113 of the paperbook, which reads as follows :- "From the facts and circumstances mentioned hereinabove and from material evidence as well as the corroborative evidence as discussed in the foregoing paragraphs it is clear that Shri A.K. Biswas in connivance with Masood Chowdhury, Ehsan Ahmed, Amin Bhat alias Merchant alias Aftab Ahmed, Khurshid Alam, Ashok Kumar Chawla and others actively participated in and abetted smuggling of snake skins to foreign country namely, West Germany through G.P.O. and Air Sorting Office on 5-10-1981 and such act of Shri Biswas rendered the goods liable to confiscation under Section 113 of the Customs Act, 1962 and rendered himself liable to penal action under Section 114 (i) of the Customs Act, 1962." 14. It is no doubt true that in that paragraph of the show cause notice, the authorities have stated that the appellant had rendered himself liable to penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity to show cause against the proposed action and on that count the abovesaid decision is not applicable to the facts of this case and it cannot be said that there was any infirmity in the proceedings so as to vitiate the same. 15. The next contention of the learned Counsel for the appellant is that there was nothing to show that the appellant was in any way concerned with the illegal export of the snake skins in question. In this connection, reliance was placed on the statements given by R.N. Biswas and Shri T.K. Das before the disciplinary authority wherein they have denied that the appellant ever introduced Mr. Merchant alias Amin alias Aftab Ahmed to either R.N. Biswas or to T.K. Das. But this evidence was given by them to the disciplinary authority and that evidence given in those proceedings is not material for this proceedings. On the contrary, on the strength of that evidence and looking into the other circumstances, the disciplinary authority had come to the conclusion that the appellant was guilty of the offence of illegal export of the snake skins. Admittedly, this finding of the disciplinary authority which has been produced as additional evidence and which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, by identifying him from amongst 13 persons. In our opinion, this circumstance is a conclusive proof in the adjudication proceedings to bring home the guilt of the appellant. The evidence in an adjudication proceedings is not very strict as that of a criminal proceedings. 16. It was strenuously contended before us that when S.K. Roy admittedly found guilty by the Collector, was not proceeded with there was no reason to proceed against the appellant on that count and the appellant should be exonerated. In order to justify this argument, Shri Deb, the learned Counsel for the appellant, placed heavy reliance on the decision of the Supreme Court reported in AIR 1984 SC 1499 (supra). The learned Counsel relied on the observations of the Supreme Court at paras 9 and 12 of the said judgment, which read as follows :- "9. What then should be done ? The appellants have been accused of participating in a procession taken out by the members of the Police Force for ventilating their grievances about their service conditions. May be that still having not reached the stage of tolerance for formation of associations amongst police personnel, the demonstrators may be looked upon with d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable to the facts of this case for the following reasons. 18. In the case before their Lordships of the Supreme Court there was a police agitation and the State Government dismissed about 1100 members of the Police Force on the allegation that they participated in the agitation. The government also filed criminal prosecutions against large number of such agitators. Subsequently the State Government reinstated 1000 dismissed members of the Police Force in their original post and withdrew the criminal cases against them. In that case the proceedings against the appellants were not withdrawn and it was suggested that they were leaders and indulged in more violent activities. There was no distinguishing features of those appellants who were proceeded with the cases of the appellants whose cases were withdrawn by the State Government. There is no iota of evidence which would distinguish the case of the appellants before their Lordships from the cases of others whose cases were withdrawn. In such circumstances, the Hon'ble Supreme Court held that the net result was that the appellants before their Lordships have been arbitrarily weeded out for discriminatory and more severe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son is, it was mentioned therein that the appellant was the main brain in the whole affair. Therefore, the degree of involvement of the appellant is mentioned in that order which is higher than that of S.K. Roy. To that extent, the decision of the Supreme Court referred to above, is not applicable to the facts of this case. Secondly, it is seen that this observation of the disciplinary appellate authority was an observation made in the appeal before him, but as far as the adjudicating officer was concerned, there was nothing in the order to show that S.K. Roy was involved in the offence in any way. On the contrary, the adjudicating officer has punished all the other persons found guilty of the offence in the same adjudication order by penalising them and some of them were penalised even more severely than the appellant. Therefore, all the persons who were similarly situated like the appellant, who had committed the offence were penalised by the adjudicating authority and in such circumstances it cannot be said that the appellant had been arbitrarily weeded out for discriminatory and more severe treatment than those who were similarly situated. On that count, the abovesaid decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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