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TMI Blog2011 (2) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... le - It appears that appellant has filed application under RTI Act within sixty days The allegation that the appellant had adopted dilatory tactics during the course of proceeding before Adjudicating Authority may not be taken into account while considering period of limitation with regard to filing of appeal - Appeal is allowed by way of remand to Commissioner(A) - 602 and 604 of 2009 - - - Dated:- 25-2-2011 - Devi Prasad Singh and S.C. Chaurasia, JJ. REPRESENTED BY : Shri Santosh Srivastava, Counsel, for the Petitioner. Shri Rajesh Singh Chauhan, Counsel, for the Respondent. [Order]. Since common question of law is involved in both these appeals, hence decided by common judgment and order. 2. Heard learned counsel for the parties and perused the record. 3. The instant appeal, under Section 130 of the Customs Act, 1962 (in short Act ) has been filed against the final order dated 28-11-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short Appellate Authority), whereby the appeal filed against the original order dated 23-5-2007 has been dismissed. 4. In brief, the facts of the case are that on 4-7-2005 at about 5.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 108 of Customs Act, 1962 dated 6-7-2005, recorded in jail, that he was carrying out business of tempted jewellery in Mumbai along with his brother-in-law Shri Kausar Khan and his address of Mumbai was Beside Rehmani Masjid, Road No. 3, Ganesh Nagar, Kandewali (W), Mumbai. He told the name of his landlord of Mumbai as Ansar. 6. As the Recovered goods were in commercial quantity which were attempted to be smuggled into the country for commercial exploitation, by way of evading customs duty on the goods, it was reasonably believed that the said goods were illegally imported from Sharjah to India contravening the provisions of Section 77 Section 79 of the Customs Act, 1962, therefore the same are liable for confiscation under Section 111 of the Act ibid. The Customs officials seized the same u/s 110 of the Act ibid after drawing a Panchnama before the independent witnesses. As Shri Mohd. Aqeel Khan was involved in the smuggling activity and liable for penal action under Section 112 and 135 of Act ibid, he was arrested on 4-7-2005 u/s 104 of the Customs Act, 1962 and sent to jail. His Judicial Custody was taken for 14 days till 18-7-2005. His passport and Air Ticket were also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrived at Lucknow. Thus the frequent visits also revealed that Shri Mohd. Aqeel Khan had opted for different airports while coming back from Dubai. Shri Aqeel Khan was detained under COFEPOSA 1974, for one year, vide Order dated 4-8-2005, confirmed by the Advisory Board, U.P. Govt., on 27-10-2005. 8. Follow up action was taken at his native place i.e. village Qaboolpur, P.S. Jalalpur, District Jaunpur : His mother Smt. Saikunisha in her statement u/s 108 of Customs Act, dated 30-8-2005 stated that last time her son Aqeel had visited his native place in December 4-1-2005 as she was not keeping well. 9. On the very same day i.e. 4-7-2005 and by the same flight IC 884, another passenger Shri Niyaz Mohd. Hasan Khan was intercepted with identical foreign goods of approximately Rs. 15.5. Lac, while he travelled across the Green channel with his goods without making a declaration before the Customs. He was also intercepted by the Officers at the Exit gate of the Arrival Hall. The Passport No. Z-1263449, of Shri Niyaz confirmed that he too had travelled to and from Dubai in similar pattern like Shri Mohd. Aqeel Khan and on three dates i.e. 23-4-2005, 7-5-2005 and 4-7-2005 they had t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he had handed over his said number to his brother-in-law Shri Akhlaq Mohd. Naqvi (Advocate), R/o Masjid Tahseen Ali Khan, Chowk, Lucknow. 12. On scrutiny of call details of Mobile No. 9892627866, it was gathered that the local No. 9415758376 possessed by Shri Akhlaq Naqvi, Advocate was constantly in touch with the aforesaid Mobile No. 9892627866, just before the arrival of the passengers Aqeel Khan and Niyaz Hasan from Dubai. In his statement dated 14-11-2005 before Customs Mumbai, Shri Seikh Mohd. Salim Abdul Jabbar accepted that the Mobile No. 9892627866 belongs to him. Shri Sheikh Mohd. Salim Abdul Jabbar is also Parokar of both the persons from the first day of the case. Shri Akhlaq Mohd. Naqvi, Advocate was summoned by the Superintendent, Customs HQ, Lucknow u/s 108 of the Customs Act, dated 20-9-2005, wherein he was required to appear before the Superintendent, Customs HQ Lucknow, Lucknow on 23-9-2005. In reply to the summon, a letter dated 23-9-2005 was received saying that Shri Akhlaq Mohd. Naqvi is out of station in connection with a case and so another date may be given. The request was accepted and the next date was fixed for 30-9-2005. Shri Akhlaq Mohd. Naqvi, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Investigating Officer Shri Rashmikant, Superintendent, who had issued the summon u/s 108 requiring Shri Akhlaq Mohd. Naqvi, Advocate to appear for evidence on 29-11-2005. The Secretary of the Association issued a Show cause notice against the Investigating Officer Shri Rashmikant, Superintendent Custom, directing him to appear before him on 5-12-2005. In the above letter it was stated that Shri Naqvi shall not attend the Customs Office for evidence. Again on 8-12-2005, Secretary of Central Bar Association, Lucknow issued a letter to the Investigation Officer Shri Rashmikant, Superintendent Customs, Lucknow, alleging that he is harassing Shri Akhlaq Mohd. Naqvi. 14. The adjudicating authority had recorded the finding that Shri Akhlaq Mohammad Naqvi, Advocate had adopted obstructionist manner, reports of investigation which indicates that he tried to abate the process of law and was the part of syndicate and had vested interest in Aqeel Khan. The Adjudicating Authority further observed that Shri Akhlaq Mohammad Naqvi, Advocate was one of the key persons, who was involved in smuggling syndicate by coordinating with Sheikh Mohd. Salam Abdul Jabbar on Mobile telephone on one han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. 17. It appears that order-in-original dated 23-5-2007 was sent to petitioner by the registered post but the same was returned back as unserved, being petitioner not available. It was affixed on the Notice Board in pursuant to statutory provision. According to learned counsel for the appellant, the appellant has moved an application under RTI Act on 21-8-2007 for supply of copies of original order, which according to appellant s counsel, was not provided. Feeling aggrieved, appellant has filed a writ petition in this Court on 19-5-2007. This Court passed an order, directing the respondent to provide a certified copy to appellant in Original. The copy of order-in-original was provided on 15-11-2007. Thereafter appeal was filed on 19-11-2007. Admittedly, the period for filing the appeal under the Act is 60 days. It appears that appellant has filed application under RTI Act within sixty days. And in the event of no response, he preferred writ petition in this Court, which was decided on 19-9-2007. Even after disposal of writ petition on 19-9-2007, it took almost two months for respondents to provide certified copy of original order i.e. on 15-11-2007. The facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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