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TMI Blog1990 (5) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... are that on 24-3-1978 Shri Ram Prosad Kulthia, an Indian National arrived at Calcutta Airport from Kathmandu by Indian Airlines flight No. IC-248 and reported at the Customs Counter with a suitcase for clearance. As his movement was suspicious, he was asked to give declaration of his baggage and articles in his possession. In the Baggage Declaration form, Shri Kulthia declared only used clothings. His suitcase was then searched which resulted in the recovery of 240 pcs. of Swiss Wrist Watch movements and one Seiko ladies wrist watch. All these goods were recovered from the special unit cabinet, from the false bottom of the suitcase which he was carrying. Sri Kulthia could not produce any documentary evidence in support of legal acquisition, possession and importation of the said wrist watch movements and Seiko wrist watch. All the goods recovered from him were seized. 4. Shri Kulthia was detained for interrogation. In the early hours of 25-3-1978, in presence of two independent witnesses, he was given a thorough personal search which resulted in the recovery of 7 pcs. of gold bars, Indian Currency of Rs. 122/- and Nepal Currency of Rs. 47/-. As Shri Kulthia failed to produce any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the learned Board and the appeal was also dismissed and against that order the present appeal is filed. 10. Shri S.K. Roy, the learned Barrister appearing for the appellant raised several questions of law and facts in this case. The learned Barrister contended that the observation of the learned Additional Collector that personal hearings were fixed on 28-7-1979, 27-8-1979 and 21-9-1979 and the party failed to appear for the hearings is against the facts on records. In this connection, he drew our attention to a letter dated 18-9-1979, in which he prayed for a time and for adjourning the case from 21-9-1979 to another date. He also brought to our notice another letter dated 6-9-1979 addressed by the Superintendent to the appellant wherein the date of hearing was mentioned as 21-9-1979. He also brought to our notice another letter dated 24-8-1979 addressed by the appellant to the Additional Collector stating that he was unable to attend the hearing on 27-8-1979 as his advocate was appearing on that date before the Supreme Court. He prayed time till the end of October, 1979. In such circumstances, it was his contention that the appellant had prayed time on sufficient g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his argument that the appellant was under arrest he relied on a decision of the Madras High Court reported in 1984 (15) E.L.T. 289 in the case of Roshan Beevi and Others v. Joint Secretary to the Government of Tamil Nadu. He also contended that the witnesses have stated that one gold bar was made into seven pieces at the Government Mint. He therefore contended that the question of seizing seven pieces of gold from the possession of the appellant is falsified by the records of the transaction. He also contended that the learned Magistrate though found the appellant guilty with respect to the possession of the watch and watch movements the same is taken up in appeal and it is pending. It was also contended by the learned Barrister that what was not dealt with by the learned Adjudicating Authority by giving the reasons to come to conclusion cannot be supplemented in the appeal proceedings. He also contended that the learned Additional Collector has not given any chance for cross-examination of the witnesses as was sought by the appellant. This has prejudiced the appellant. It was, therefore, contended that in order to satisfy the Tribunal that the statement of the witnesses will show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l come into effect that no adjudication proceedings can be finalised before the Criminal Court gives the decision in the matter. He also contended that the degree of proof required in the Criminal Court as well as the Adjudication Proceedings is different. In the Criminal Proceedings the strict rules of evidence and Criminal Procedure Code are applicable whereas in the adjudication proceedings those provisions are not strictly applicable and the Adjudicating Authority is to proceed on the basis of natural justice and preponderance of probabilities. He also contended that the question of proof beyond reasonable doubt cannot be imported in adjudication proceedings. It was also contended by him that the documents produced by the appellant in the Tribunal are the deposition of the witnesses as well as the judgments of the Criminal Court and cannot be looked into. As far as the argument of the learned Barrister is concerned to the effect that the order of the learned Additional Collector is not a speaking order, the learned S.D.R. contended that in the finding portion the learned Additional Collector has not discussed the matters in full. But the learned S.D.R. brought to our notice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind out whether the order suffers from infirmity on the ground that the same is not a speaking order. It is now a settled principle that the Adjudicating Authority should apply its mind to the facts of the case and should give reasonings in support of the decision arrived at. Mere allegation mentioned in the show cause notice cannot take the place of evidence. In order to appreciate the contention of Shri S.K. Roy, the learned Barrister, we may reproduce the orders of the Adjudicating Authority in dealing with this case which read as follows : I have considered the merits of the case as on record. I also notice from the records that more than adequate opportunities were made available to Shri Ram Prosad Kulthia to appear for personal hearing, but he has deliberately refrained from for the same on some pretext or the other. It is evident that the party is resorting to dilatory tactics. Under the circumstances, I am left with no option but to proceed to adjudicate the case. In this case, 240 pcs. watch movements and one pc. wrist watch, 7 bars gold, Indian and Nepalese currency were seized from Shri Ram Prosad Kulthia on his arrival at Dum Dum Airport from Kathmandu on 24-3-1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er itself being a non-speaking order this Tribunal cannot give one conclusion or the other. 16. The learned Barrister, Shri Roy had rightly contended that these lacunas cannot be made up at the appellate stage and in that connection, he has relied on several rulings cited above. Therefore, when the original authority has not dealt with this aspect the same cannot be made up by the appellate court as if the original authority was dealing with the case. On that ground also, the orders suffer from infirmity. Another argument advanced by the learned Barrister, Shri S.K. Roy, is to the effect that the orders of the Criminal Court in acquitting the appellant is binding on this Tribunal as far as the gold pieces are concerned. 17. There are also several other decisions wherein it has come to our notice that the proceedings in the Criminal Court as well as the Adjudication Proceedings are different ones. The Adjudication Proceedings are to be determined in accordance with the principles of natural justice and the Criminal Procedure Code and the Evidence Act are not binding on the Adjudicating Authority. In a decision reported in 1989 (39) E.L.T. 596 (Tri.) = 1988 (12) ETR 937 in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal under Rule 23 of the CEGAT Procedure Rules, 1982, which were allowed by this Tribunal to be taken as evidence in this case. We are ordering the Adjudicating Authority to look into all these documents, as the order of this Tribunal admitting them as evidence has become final as the same was not challenged by the Department. We are also directing the Adjudicating Authority that he should hear the appellant with respect to the binding nature of the judgments of the Criminal Court and then decide the matter in accordance with law. We hereby make it clear that the Adjudicating Authority is free to come to one conclusion or the other by taking into consideration several case laws cited by the appellant or the case laws relied on by the Authority itself in this behalf. We also hereby make it clear that the Adjudicating Authority should discuss all the points that may be raised on behalf of the appellant and should give a clear finding with respect to those points and should give a speaking order in this behalf. With these observations, the appeal is allowed and the matter is remanded back to the Adjudicating Authority for disposal in accordance with law. - - TaxTMI - TMITax - Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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