9911796707
TMI Blog1998 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... abs, weighing 308.122 Kgs., 42 foreign marked gold biscuits, 7 jute cloth packing material and other materials used for concealing the foreign marked silver and gold as also confiscation of a Maruti Gypsy used for transporting the said items. 3. The Department s case is that from three persons, namely, Anis Abubakar, Md. Hasan and Moosa arrested by Police on 11th March, 1993, near Sendra Police Station, Jodhpur the aforesaid silver slabs and gold biscuits were seized on the reasonable belief of possessing goods liable to confiscation since the persons were not in possession of any documents showing their legal import. 4. By show cause notice dated 2-9-1993, S/Shri Mohammed Imtyaz, Anis Abubakar, Mohammed Hasan, Abdul Rehman, Moosa and Nadim Bhai were called upon to show cause why the impugned goods should not be confiscated and why personal penalty should not be imposed on them. The show cause notice referred to the statements given by Shri Anis on 12/13-3-1993 admitting to the fact that the recovered gold and silver had been handed over to him by one Mohammed Imtiaz at Surat on 10-3-1993 for transporting the said goods to one Shri Nadeem Bhai of Ajmer through Shri Abdul Rehman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggage receipts produced by Shri Anis Abubakar which proved that the three baggage receipts were genuine. However, the occupants of Maruti Gypsy could not produce any sale deed/transfer note transferring the said items in any persons favour. 5. The matter was adjudicated by the Commissioner of Central Excise who passed the impugned order. 6. Shri G.K. Rana, Advocate along with Shri Farook M. Razack with Shri Abdul Hamid, Advocates appeared for the appellants. Shri P.K. Jain, SDR represented the Department. 7. Since the facts relating to all the five appeals were common and the appeals arise from the same impugned order, the appeals were heard together and are being disposed of by this common order. Re: C/24/96-NB (Shri Anis Abubakar v. CC, Jaipur) C/21/96-NB (Shri Moosa v. CC, Jaipur). C/22/96-NB (Shri Mohammed Hasan v. CC, Jaipur) 8. It was contended on behalf of the appellants that by ld. Counsel that Shri Anis Abubakar had produced the baggage receipts to the Police Officers at the time of their interception and on finding that the goods were duly accounted for, the Police Officers had themselves tore off two baggage receipts. He contended that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written by the officers of Customs. Subsequently when the appellant Anis Abubakar and his two other companions (Shri Moosa and Mohammed Hasan) were produced before the Judicial Magistrate for bail, they had brought to the notice of the learned Judge that they had been kept in illegal custody, tortured and coerced into signing the prepared incriminatory statements and that the gold and silver in their possession which had been acquired legally had been seized by the officers of Customs. Learned Advocate emphasized the fact that the three appellants had retracted their statements at the earliest opportunity on 15-3-1993 at the time of seeking bail before the learned Judge. On 15-3-1993 they had also submitted complaints supported by affidavits to the Collector of Customs, Jodhpur with copy to the Assistant Collector (Preventive) Jodhpur, stating that all the documents, namely, baggage receipts in evidence of lawful importation and payment of Customs duty in respect of silver bars and gold biscuits were shown and handed over to the Officers of Police but in spite of the same, the goods in question had been seized by Police Officers and subsequently handed over to the Customs. He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Rahim Noor Mohammed, uncle of Mohammed Imtyaz.The said import was covered by baggage receipt (B) No. 001379, dated 18-9-1989. The said 42 pieces of gold was given by the said Noor Mohammed to his nephew Imtyaz for sale in India. Rahim Noor Mohammed had submitted an affidavit corroborating the said fact. The said affidavit had been completely ignored by the adjudicating officer. As regards the silver slabs, the learned Advocate submitted that the observation of the Commissioner that the weight of the silver slabs mentioned in the Annexure to the Panchnama did not tally with the physical verification of the slabs was not correct. Learned Advocate submitted that the baggage receipts mentioned the import of 14 silver slabs. Appellants were carrying only 10 silver slabs. He contended that if the baggage receipts were perused it would be clear that out of 14 silver slabs imported, 9 of them weighed around 30 Kgs. each. As regards the silver covered by baggage receipt No. 000351 relating to three silver bricks, the baggage receipts showed the import of silver with the aggregate weight of 100 Kgs. Since individual weight of each silver slab was not given in baggage receipt No. 000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudication Officer when it was found that the medical examination report did not mention any visible marks of injury on the person of the appellants. He also submitted that the appellants themselves had in their initial statements stated that their statements were voluntary and the facts narrated were true. It was therefore not correct to argue that the statements given by the appellants on 12-3-1993 were not voluntary or that they are unreliable as being retracted statements. As regards the argument that the 5 baggage receipts produced by the appellants later evidenced legal import of 10 silver slabs and 42 gold biscuits, SDR submitted that it was seen that the baggage receipts showed the total weight of silver imported as 299.106 Kgs. whereas physical verification of the seized silver showed 308.122 Kgs. Learned SDR therefore submitted that the baggage receipts produced by the appellants did not correspond to the silver being carried by the appellants and the baggage receipts produced by them were only a `safety measure. This had also been admitted by the appellants in their statements at the time of seizure as would be evident from their statement dated 12-3-1993. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector to serve them the notice in jail within the specified period of six months. We find that the adjudicating officer in the impugned order has only stated that the show cause notices were delivered on `chaspa method and were later on served in jail under proper acknowledgment. We note that `chapsa method is not a procedure which is prescribed under the Customs Act or the Rules made thereunder. We therefore find that the contention of the appellants as regards service of notice is well-founded. On the question of failure to allow cross-examination of the seizing officers of the Police and Customs at the time of adjudicating proceedings, we find that the impugned order does not deal with this matter at all. Appellants, however, have not been able to show anything on record in support of any request by them to the adjudicating officer for permission to cross-examine the seizing officers. We therefore cannot accept the plea of the learned Advocate for the appellants that there was failure to provide an opportunity to cross-examine the witnesses by the appellants at the time of adjudication proceedings and that this has resulted in non-observance of the principles of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the recovery memo prepared by the Police had been suppressed. We find that the adjudicating officer has not given any finding on this aspect. In our view the lower authority should have considered this aspect when the fact of interception of the three appellants by the Police is not in dispute. In this context the claim of the appellants that they had requested for cross-examination of the Police Officers who intercepted the Maruti Gypsy on 11-3-1993 is also relevant since the allegation directly involves the concerned Police Officers. We have also seen the medical certificates issued by the Superintendent of S.M.S. Hospital dated 16-3-1993, after medical examination of the appellants S/Shri Anis, Moosa and Mohammed. While the certificate relating to Anis does not show any visible marks of injury at the time of examination, swelling around ankle joint has been recorded. As regards the certificates relating to Moosa certain abrasions have been recorded. In the case of Mohammed no visible injury has been recorded at the time of examination. We therefore do not find that the allegation of torture as alleged by the learned Counsel for the appellants is supported by any evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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