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TMI Blog2015 (3) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of Dil Agha recorded on 23.05.2001. Dil Agha’s unsigned statement was duly supported by two independent witnesses. It established a close connection between Mamoor Khan and Dil Agha on one hand, and regular passengers (or couriers) such as Olga K, Gulia etc. on the other. Dil Agha’s association with Mamoor was also confirmed by Abdul Qayum, Manager of Sameer Guest House, Ballimaran, Delhi in his statementdated 20.12.2000. The evaluation of these materials led to the adjudicating orders’ conclusion that Dil Agha was an important player in smuggling silk fabrics through Uzbeki women and that the charges made against him for conniving, abetting and conspiring were established. - The conclusions of the Customs adjudicating Commissioner did not rest on the various statements recorded under Section 108 only. A very crucial element which lent corroboration to those statements were the call detail records. The absence of goods or the fact that in earlier instances they had been cleared without dispute, or even after payment of differential duty, in the opinion of the Court do not constitute impediments to a SCN and proceedings on the question of abetment of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en put to them in the SCNs. Furthermore, they had also not given any convincing or reasonable explanation for the phone calls received from Mamoor Khan, Dil Agha, Olga, etc. In the circumstances, the findings of the lower authorities that they were not prejudiced, and that principles of natural justice were not violated, cannot be interfered with. Commissioner did not rely only on the weight metre ratio, but also considered another criterion - It was, therefore, concluded that on each of the dates, the weight of the baggage was around 4000 kgs when two trucks of 3750 kgs capacity were hired on each occasion. The investigation calculated the baggage weight on the lowest and safest side as 2364 kgs on 17.7.2000 and 1914 kgs on 21.8.2000 and proposed the same for assessment. The weights were proportionately worked out on the basis of the ratio of actual weight and recorded weight as on 28.8.2000 i.e. 1.9144 times the recorded weight. Here the figure of 2364 kgs was computed by multiplying the recorded weight of 1235 kgs by 1.9144 and the figure of 1914 kgs has been worked out by multiplying the recorded weight of 1000 kgs by 1.9144. This clearly shows application of mind to the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 25.01.2011. The impugned order had dealt with a batch of 35 appeals - some of them dealt with the present appellants. The appellants are hereafter referred to by their names for the sake of convenience. The appeals had arisen out of common adjudication order dated 01.10.2007 by the Commissioner of Customs (hereafter referred to as the Commissioner ). 2. The following questions of law are sought to be urged by the appellants: (a) Whether the findings in the impugned order with regard to abetment by the appellants are justified in law; (b) Did the CESTAT fall into an error of law in upholding the findings based on denial of natural justice, especially the refusal to grant cross-examination to the appellants; (c) Whether the findings based upon mobile phone records and confessional statements of some individuals, notably the co-noticees, is sustainable in law, in the circumstances of the case, in the absence of any other corroborative material; (d) Did the CESTAT err in its findings regarding the method adopted in arriving at the average weight to assess liability, and the absence of essential documents like the passenger declarations. Facts of the case: 3. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations against the appellants inter alia centred around their complicity in the smuggling of huge quantities of silk textiles on 24 occasions. Based upon the quantity sought to be smuggled into India, on 28.08.2000 by Olga, the Commissioner deduced, on the basis of an averaging exercise, that the unseized extent of silk textiles was to the tune of 4,21,245 metres, which would have weighed 26,485 kgs and that the Customs Duty evaded was to the extent of ₹ 1,75,78,322/-. The SCN relied upon the following table, which spelt out such details - the table is extracted below: 175. The quantity of silk textiles imported computed on the above basis vis a vis the quantity of textiles assessed on relevant dates prior to 28.8.2000, showed that substantial silk textiles escaped assessment resulting in the evasion of customs duty. The details are presented below:- Date Wt. in Kg Mtr.of silk textileimported Mtrof textile assessed Unasses sed mtr of silk textiles Value of unassessed mtr of silk textiles Customs duty evaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12243 252293 IKM 9 15.5 .00 1500 26430.00 800 25630 1742840 1066618 SA 10 22.5 .00 1220 21496.40 3200 18296 1244155 761423 OK, NI, SA 11 12.6 .00 2000 35240.00 4400 30840 2097120 1283437 OK, V 12 1.7. 00 590 10395.80 2176 8220 558946 342075 OK 13 3 / 4.7. 00 820 14448.40 0 14448 982491 601285 OK 14 10.7.00 1220 21496.40 0 21496 1461755 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.8 .00 1914 33724.68 2300 31425 2136878 1307769 ML 2648 5 466665. 70 45421 421245 28644640 17578322 Notes: OK -Olga, NI-Nazira, SK-Shakista, SA-Shahlo, IKM-Isamu KM, V-Velichko, ML-Merkulova; Duty for 17.12.98 @ 67.4%: Weight does not include normal baggage weight with co-passenger(s); Benefit of textile metres assessed in respect of all the group passengers, extended: imputed weight of 1220 k on 10.4.00, 8.5.00 and 14.8.00; impuged weight of 2364 kg instead of reported 1235 kg on 17.7.00 and of 1914 kg instead of reported 1000 kg on 21.8.00; Merkulova Liubov arrived on 14.8.00 hence 14.8.00 weight imputation made in ML s name; all figures/calculations are rounded off. 6. In response, all the appellants resisted the SCNs. It was contended that the reliance placed upon the mobile phone call records was insufficient to render any findings and that it was unsafe to rely upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 19.13. The observations were in the context of findings with respect to the pleadings to the reversal of the adjudication order as regards 14 customs officials. They apply equally to the case of the appellants. 9. Dealing with the complaint of denial of cross-examination, the CESTAT held as follows: XXXXXX XXXXXX XXXXXX 18.9 Though it cannot be denied that the right of cross-examination in any quasi-judicial proceeding is a valuable right given to the noticee as these proceedings may have adverse consequences, at the same time under certain circumstances, this right of cross-examination can be taken away. Hon ble High Court of Bombay while dealing with the similar issue in the case of Gyan Chand Sant Lal Jain v. UOI reported in 2001 (136) ELT 9 (Bom) and taking into consideration the applicability of concept of principles of natural justice in that regard quoted para 76 of Halsbury s Law of England, Vol. I (4th Edition) which reads thus:- Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to proceedings before courts of law. Members of tribunals may be entitled to draw on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic efforts such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. It is not a matter of right for any assessee to contend that the statements of witnesses should be discarded. Contention of the appellants 10. It was argued, by Ms. Premlata Bansal and Mr. Ashok Bhan, Senior Advocates, Mr. Balbir Singh and the other learned counsel, that penalty under Section 112 of the Customs Act could not have possibly been imposed against the appellants. It was urged that no attempt was to justify the penalty and that under Section 112 penalty can be levied only if the person is in actual possession of the goods and has knowledge that they are liable to confiscation under Section 111. It was argued that the goods in the present case, having been cleared after payment of redemption fine by the importer, had no co-relation to any of the appellants. The orders of redemption based on spot assessment h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggage was under a duty to declare its contents, under Section 77. The lower authorities, submitted counsel, made no attempt to fix this responsibility on the owner and did not even secure authenticated copies of the passenger manifest and the baggage loaded on to the aircraft- even in the case of the luggage alleged to have been smuggled on 28.08.2000. In these circumstances, there could have been no culpability attributed to the appellants. Their roles were not defined and the findings in regard to violation of provisions of the Act, leading to imposition of penalties were wholly unjustified. 15. It was argued next that CESTAT went purely by surmises and conjectures in returning adverse findings against the appellants and imposing penalties upon them. All the learned counsel argued that the absence of any substantive evidence, in the form of passenger manifests in original, documentary proof regarding the complicity of the appellants with Olga and her accomplices smuggling activities and absence of any seized material, coupled with the finality attained by previous spot assessment orders, meant that the Customs authorities had no evidence to go by. Merely because some appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. It is not conceivable for the appellants, who are not party to above proposals to aid or abet the said passenger without implicating the Inspector and Superintendent, who had examined the goods and processed the proposal for adjudication. Thus, the fact that the appellants were not involved in processing the proposal is significant. This escaped the notice of the CESTAT altogether. 18. It was argued that the uncorroborated admission of some charged official - which stood retracted later, could not have been the material used to arrive at adverse findings. In this context, reliance was placed on the judgment reported as Vinod Solanki Vs. U.O.I, JT 2009 (1) SC 1 to the following effect: 22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. Reliance is also placed on the decision in Pon Adithan v. Deputy Director, Narcotics Control Bureau Madras 1999 (6) SCC 01. It was argued that Shri R.N. Zutshi's statement contains only vague allegations casting adverse r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inting out that the adjudicating authority, i.e. the Commissioner s order is based upon an intensive and meticulous analysis of the facts, learned counsel highlighted that a painstaking effort linking the various appellants with the smuggling racket which had successfully evaded Customs Duty for nearly two years, had been analysed in respect of each date and in respect of each of the appellants. 21. With respect to the issue of the reliance placed upon confessional statements, in the absence of other material, learned counsel submitted that there are several decisions highlighting that Revenue, especially, the Customs proceedings do not involve concerns which are to be addressed in criminal proceedings that involved fundamental freedoms and personal liberties. Reliance was placed upon Naresh v. UOI 1996 (83) ELT 258 (SC); K.I. Pavunni v. Asst. Collector 1997 (90) ELT 241 (SC) and KTMS Mohammad v. UOI AIR 1992 SC 1831. It was argued that whilst in criminal proceedings, the law insists upon the prosecution proving its case beyond reasonable doubt - which is the highest threshold of proof, in quasi-judicial proceedings that involve evasion of tax law or evasion of Customs Duty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by table 2, 3 and 4 are also available. In this context, I find that the proposed weight metre ratio of 17.62 has been computed on the average basis of the above elements of the silk fabrics physically available as on date. On the other side, a perusal of the weight exhibited by the Airlines and the metres assessed in AOs relating to 19.6.2000 brings forth that even on this date voluminous baggage of silk fabrics containing different varieties was brought in by Olga Kozireva, Isamu KM, Merkulova, Shakista. K. and Vetchinkina T. As against the total weight 2333 kgs as per records of Airlines and as detailed in para 74 of the notice, the total meters assessed in AOs are seen to be 45,600 mtrs which seem consistent, logical and reliable. The average metres per kg i.e. weight metre ratio here works out to 19.54. As detailed in para 74(d) of the notice, in respect of Merkulova and Shakista K, 424 kgs of a variety of silk fabrics were assessed to 7000 mtrs on 19.6.2000 producing average of 16.50 mtrs per kg. It is fairly comparable to a variety of silk fabrics having 16.79 mtrs per kg and 45.7 gsm brought in on 28.8.2000. Similarly, 229 kgs of a variety of silk fabrics relating to O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13) ELT 1486. Similarly, it was submitted that the argument with respect to absence of service of SCN upon several persons such as Olga, Nazira etc. is meritless. Learned counsel relied upon Section 153 and relied upon the findings of the Commissioner that even though personal notice could not be effected on those individuals, the requirement of law with respect of constructive notice had been complied with and that since such individuals left the country fully aware of the possible probable consequences, the appellants cannot take advantage of such technicality. 25. Learned counsel submitted that the statements of R.N. Zutshi and Dil Agha defined the role of most of the appellants, i.e. V.K. Khurana and T.K.R. Reddy. In the case of Sudhir Sharma and R.N. Zutshi, the statement of Dil Agha dated 11.07.2001 was adverse to them. Likewise, phone record established the link between these two individuals on the one hand and Dil Agha, Mammoor Khan and others involved in the smuggling racket. It was submitted that the same reasoning applied in the case of T.K.R. Reddy, Pradeep Rana and V.K. Khurana. Learned counsel also invited the attention of this Court to the various tables set out i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts hi Dil Agha Yes 123 calls (all with Mamoor Khan) 9811102138 5513999 (landline) 7. Pradeep Rana 4.5 Dil Agha Yes, 19 calls- all with Dil Agha 8. Anil Madan 2.5 R.N. Zutshi 27. The customs authorities apparent routine check of Olga Kozireva's (a Kyrgiz national) baggage, on 28.08.2000 and discovery of her illegal importation and smuggling into India, a quantity of 81160 yards (74212 meters) of silk textiles without the necessary declaration, her detention and subsequent statement under Section 108 of the Customs Act triggered the entire investigations. The investigations were carried out by the Directorate of Revenue Intelligence (DRI) . The conspiracy unearthed showed that an Afghan National, Mamoor Khan, frequented and stayed at Sameer Guest House in Ballimaran, Delhi. The investigating agency also obtained a photograph of Mamoor Khan from FRRO. One Pawan Kumar, driver of Sehrawat Goods Carrier in his statements date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts were being cleared. This evidence pointed to a pattern disclosing Mamoor Khan s pivotal role in this complex and massive network of smuggling operations. He was regularly in contact with other key players in this web of conspiracy. Mamoor Khan s corroboration would have led to conclusive proof; yet the customs authorities concluded that whatever emerged, through statements of various individuals and materials was substantial and cruciallyun- rebutted, to conclude that the appellants were in fact accomplices and conspirators in smuggling silk textiles. The materials gathered and statements recorded during investigation led to SCNs to the appellants, the passengers involved, other individuals like Dil Agha, traders, etc. Re. Question Nos (a) and (c) (a) Whether the findings in the impugned order with regard to abetment by the appellants is justified in law; (c) Whether the findings based upon mobile phone records and confessional statements of one party are sustainable in law in the circumstances of the case in the absence of any other corroborative material. 28. These questions are inter-related and are taken together. The main argument of the appellants was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the highest. The principal contention was that what was seized was only the quantities of goods from Olga on a particular day, i.e 28.08.2000. Those goods were available for assessment, seizure, consfiscation and penalty proceedings. If and only if, the role of the appellants or any of them was available in respect of such consignment only and none else, could the Customs authorities have concluded that they had abetted the activities. However, such was not the position; statements of R.N. Zutshi, Dil Agha, Olga, and several other individuals were relied on in respect of entirely different transactions allegedly amounting to smuggling - on several previous dates. Those quantities of silk were not seized. On the contrary, they were assessed and wherever found to be excess baggage, differential duty was even recovered; in other cases, they were never even seized, since the declarations as to value were accepted. In the circumstances, the conclusion of the appellant s complicity as abettors was unfounded in law. 30. The Court here observes that the SCN and findings of the Adjudicating authority have plainly brought out through various connecting strands of materials the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . R.N. Zutshi has not stated in his retraction that any physical force was employed or that he was threatened with any physical harm if he refused to do the bidding of his alleged tormentors. Considering his long experience and other relevant circumstances, I hold that this letter regarding retraction is nothing more than an after thought and I hold that the statement tendered by Mr. R.N. Zutshi is voluntary and given by his free consent. The Judgment in the case law of Aher Raja Khima vs. State of Saurashtra reported as AIR 1956 SC 217 [V 43C 45 MAR] cited by him, is therefore, not relevant. xxxxx xxxxx xxxx 5. Print out of telephone calls 390. In making the allegation of illegal clearance and connivance, the DRI has relied extensively on the print outs of telephone calls made by various noticees amongst each other. The details of these telephone calls are contained in Tables No.7,8,9,10 11 of the show cause notice. These tables have been constructed on the basis of print outs obtained from various service providers and the evidence used in the show cause notice is that passengers like Olga K. and others, several Customs officers posted at Airpoort and facilitators l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that telephonic conversation alone in the absence of corroborative evidence is not enough to fasten the liability of abetment and connivance. Later, it was held as follows: 419B. While analysing the evidence against the noticees charged with abetment, I have kept in mind the above definition of abetment. Broadly speaking, the illegal consequences that took place are the alleged clearances of commercial clearances of silk fabrics without declaration and payment of duty leading to the violation of provisions of Customs Act, 1962. The intention and knowledge of conoticees has been inferred on the basis of circumstances of the situation. For example, if a co- noticee has been in touch with people like Mamoor Khan, Dil Agha or the passengers who wascharged with import of huge quantity of commercial baggage on regular basis it might be possible to impute the knowledge and intention of such co-noticees. Similarly, commonality of interest with the passengers has to be seen in the context of allegations of illegal gratification. Generally speaking, huge quantities of commercial goods would be brought in by passengers in an organized manner only if they have a prior commitment or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prudent man may on its basis, believe in the existence of the facts in issue. Likewise, in State of Maharashtra v. Bharat Chaganlal Raghani (2001) 9 SCC 1 the Supreme Court held that: 58. .... There is no denial of the fact that the judicial confessions made are usually retracted. Retracted confessions are good confessions if held to have been made voluntarily and in accordance with the provisions of law.... Corroboration of the confessional statement is not a rule of law but a rule of prudence. Whether in a given case corroboration is sufficient would depend upon the facts and circumstances of that case In Wariyam Singh v. State of U.P. (1995) 6 SCC 458 and S.N. Dube v. N.B. Bhoir and Ors (2000) 2 SCC 254, the Supreme Court relied upon the confession made by an accused for conviction so long as there was corroboration. The Court held that the allegation of the confession being fabricated was without any basis and the confession could be taken into account while recording the conviction. 33. The Court is conscious that the above decisions were in the context of evidence which was received in regular trials during the course of criminal proceedings. Here, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been denied on different grounds, the main one being that no statement of passenger Shalo. A. had been recorded; that the noticee did not know any person by the name Mamoor Khan or Dil Agha; that the statement of Dil Agha is not corroborated by any independent evidence. He has also questioned the methodology adopted for working quantity and value of goods and the fact that goods were indeed textiles. At the time of personal hearing held on 21st Jan, 2007, the noticee, interalia, contended that show cause notice had not been served on the main noticee and hence, no proceedings could be initiated against the abettor. He placed reliance on the judgment of Teksons Vs AC Customs, CCE Vs Sita Electronics, CCE Vs. Electrolites Foils. He also contended the argument of pooled baggage on the basis of U.O. Note of D.C. (Vigilance). He has further submitted that adjudication proceedings in the present case were initiated by Mr. Rajender, ACO and not by him. 446. 1 have considered the evidence on record as well as the statement of the noticee. The issue regarding description, quantity and value of the baggage brought in have already been considered and decided by me in paras above. So far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 112 of the Customs Act, 1962 under charges of abetment, connivance and conspiracy. ********************* **************** 494. The general evidence against Sudhir Sharma is in the form of statement of R.N. Zutshi dated 17th Jan., 2001 and the records of his 103 calls with Mamoor Khan and Dil Agha etc. It has been pointed out in the show cause notice that Sudhir Sharma was on duty at the Airport. The telephone records further show that there were 4 telephone conversations between Sudhir Sharma and Mamoor Khan after the arrival of flight. While the general defence submitted by Sudhir Sharma has already been discussed hereinabove, specifically with regard to 1st July, 2000, it was submitted by the noticee that the adjudication proposal in respect of Nazira on the said date was put up by Mr. Rajinder, ACO and not by the noticee. 495. 1 have examined the defence of the noticee with due care. It is true that the adjudication proposal with regard to the main noticee Olga K. and abettor Nazira I. was put up by some other officer. However, the noticee has made no effort to explain 4 interactions that took place between him and Mamoor Khan after the arrival of the fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this fact. Khurana In AO records the fact that she had not declared any dutiable articles and was diverted to Red Channel, Still, neither did he inventorize her entire baggage nor the total quantity brought was put up for assessment or adjudication. This specific evidence along with other general issues analyzed already leaves me in no doubt about the involvement of V.K. Khurana in abetment and connivance in clearance of baggage of Olga K. Accordingly, I hold him liable for penal action under Section 112 of the Customs Act, 1962. ********************* **************** 462. 1 have carefully considered the entire gamut of evidences against R.N. Zutshi. and his responses thereto. So far as the validity of his statement as evidence is concerned, the same has been discussed very minutely and in great detail hereinabove. It has also been analyzed why the plea of supposed retraction was meaningless and that how such a retraction does not negate the evidentiary value of the statement. Though in case of Zutshi himself, his statement being totally inculpatory might be enough to draw an adverse conclusion against him; there is further corroborative evidence in the form of his interac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily based upon the statement of R.N Zutshi and Dil Agha. There is also evidence of extensive interaction between Reddy and Mamoor Khan on telephone. All these details have already been discussed in the above paras while discussing the chain of events that happened on 27th Feb., 2001. The genera1 argument taken in reply of TRK Reddy have also been discussed above. However, regarding 22nd May, 2000, the noticee has taken an additional defence that the manifested weight on this particular date with regard to the noticee was very minimal and that the quantity of textile brought in had been computed by taking into account the kind of vehicle used for transport of goods. 483. 1 have carefully considered the evidence available against the noticee as well as their submissions in defence. He was admittedly in touch with Mamoor Khan on regular basis and this fact very strongly corroborates what has been stated by R.N. Zutshi in his voluntary statement dated 17th Jan., 2001. Even on 22nd May, 2000 there was a telephone contact between Mamoor Khan and TRK Reddy at 7.59 AM on 5513999 of TR.K Reddy. The flight arrived at 9.22 AM and TRK Reddy who was on duty spoke with Mamoor Khan again on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already been analyzed. On the relevant date, R.N. Zutshi was also on duty and there were as many as 11 telephonic conversations between Zutshi and Dil Agha on the telephone numbers belonging to Mamoor Khan. I am, therefore, not in any doubt that both the noticees have rendered themselves liable for penal action under Section 112 of the Customs Act, 1962 for conniving and abetting in the clearance of commercial baggage of Merkulova L. The findings against Mr. V.K. Khurana are as follows: 526. The show cause notice has named V K. Khurana as a co-noticee. The evidence against V.K. Khurana is in the form of inulpatory statement of R.N. Zutshi, records of telephonic conversation with Mamoor Khan, Dil Agha, Olga K. etc. at different points of times has already been discussed. On this date particularly, there is evidence to show that DilAgha with his mobile phone No, 9811065897 was present at the Airport Terminal No.2 from 4.45 PM to 7.52 PM and spoke with V.K. Khurana who was on duty on 4 different occasions during this period. In addition to strong evidence already on record, the time and nature of these phone calls which have not been explained by V.K. Khurana in his rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointedly mentioned the name of Pradeep Rana as an important (khas) conduit of Mamoor Khan along with, Zutshi and Reddy. R.N. Zutshi has accused Pradep Rana of negotiations of money to be charged from Mamoor Khan and carried out its distribution among baggage officers. I have gone through the contents of Table No.7 of show cause notice and I find that there were 19 telephonic interactions between telephone admittedly belonging to Pradeep Rana and Dil Agha between 7th July, 2000 and 28th August, 2000. The allegation of bribery has been further reiterated by Dil Agha in his statement dated 25.7.2001. The DRI have also brought out on page 56 to 58 certain instances wherein he has prepared the adjudication proposal on different dates indicating lesser quantity of textiles than what was actually manifested and brought in by the passengers. I have examined the written defence dated 19th Sept., 2006 filed on behalf of the noticee. The main argument raised in defence is that in respect of 3 dates when Pradeep Rana is accused of abetment, no goods were seized; that the details in Table No. 11 do not indicate of the conversations took place during the alleged telephone calls; that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana. While the flight No. HY-429, arrived at 3.39 AM, the telephonic contact took place at 1.36 AM, 4.44 AM, 4.46 AM and 8.59 AM while Pradeep Rana was on duty and was handling the adjudication proposal in respect of Olga K. Keeping in view the totality of the circumstances and the timing of calls exchanged between Dil Agha and Pradeep Rena on one hand and Dil Agha and Olga K. on the other hand (at 3.39 AM, 4.42AM, 4.54 AM, 5.42AM, 6.47 AM 7.10 AM, I observe that this is not a simple case of ineptitute or carelessness but of active connivance and abetment which lead to preparation of such an adjudication proposal. This altogether with the statement of Dil Agha and frequent exchange of telephonic calls with Dil Agua leads to me to unavoidable conclusion that the charge of abetment, conapiracy, and connivance is proved against Pradeep Rana and he is liable for penal action under Section 112 of the Customs Act, 1962. Likewise, the findings regarding Yashpal were as follows: 447. The charges of collusion, abetment and conspiracy against Yashpal is proposed to be established on the basis of following two pieces of evidence: (a) R .N. Zutshi in his statement dated 17th July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was in touch with the telephone numbers which were found to be belonging to Mamoor Khan, DilAgha and Shahlo A. He tried to explain this as conversation with an informer which is not a plausible explanation under the circumstances of the case. No suitable defence has come forth either in writing at the time of personal hearing. So far as his argument that his case should be dealt with under Section 136 of the Customs Act, 1962 is concerned, conspiring to clear commercial baggage while causing loss to exchequer by no stretch of imagination could be said to be a part of the Official duties of Customs officers. The provisions of Section 136 are attracted only where the offence is committed during discharge of official duties. This provision of the case laws cited, therefore, has no application in the present case. The other arguments of the noticee have already been dealt with in foregoing paras. 450. In the light of circumstances of the case and evidence as discussed above, I hold that charges of abetment, collusion and conspiracy against Yashpal are established and he is liable for penal action under Section 112 of the Customs Act, 1962. ********************* ************* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ylized in the preceding paragraphs. The noticee appeared for personal hearing on 20th Dec., 2006 along with his Advocate R.L. Lamba and in addition to the written submissions, he took the plea that the statement of R.N . Zutshi had been retracted; that the disembarkation card had not been made available; that the passenger manifest as given in the Customs Manual as Customs SI. No.70 did not have the column for description/quantity of baggage. He also requested for cross examination of 20 persons. All these aspects have been commented upon and analyzed elsewhere. 442. On analyzing the evidence available against Ajay Yadav vis- -vis defence offered by him, I find that the primary evidence is in the form of statement of R.N. Zutshi. I further observe that there is no allegation against Ajay Yadav that he was in touch with any other noticee like Dil Agha, Mamoor Khan, Olga K., Nazira I. etc. on mobile or landline telephone. There is no charge that he spoke to concerned passengers on the their arrival . There is, however, the issue of forwarding the adjudication proposal prepared by VK. Khurana to the shift Dy. Commissioner. Ajay Yadav in his statement dated 16th Feb., 2001 has admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of only 800 mtrs. of textiles, though sh had come in with 14 pieces of baggage weighing 1,500 kgs. which translated into 26,430 mtrs. 509. In his defence, Anil Madan has not denied dealing with this adjudication. I find that he has confirmed in his voluntary statement dated 6.2.2001 that he was on duty on 24.7.2000 an AO No. 14262 which accounted for only 800 metres of baggage brought by Merkulova though she was actually carrying 26430 mtrs. had been put up by BC Gogna through him. One look at the passport of Merculova would be enough for any Customs officer to conclude that she was a regular and non-bona f de passenger. There is documentary evidence that she was on this day was carrying 1,500 kgs. of excess baggage but Anil Madan has failed in his duty to ensure proper inventorisation of her baggage. This coupled with the statement of R.N. Zutshi is adequate to conclude that there was an element of connivance in clearance of such heavy baggage and I hold the noticee liable for penal action under Section 112 (a) of the Customs Act, 1962 . 35. In the light of the above discussion, it is apparent that the Commissioner did not go by only the statement of R.N. Zutshi to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant. A similar view had been expressed earlier in Issardas Daulat Ram and ors. v. The Union of India Ors. [1962] Supp. (1) S.C.R. 355. It was also followed in Collector of Customs, Madras Ors, vs. D.Bhoormul (1974) 2 SCC 544. 37. Bhoormul (supra) is also authority for the view that the law does not insist upon an impossible threshold of proof to establish allegations in Customs proceedings and that if on probabilities the statutory authorities can establish evasion, the legal standards are adequately met with. Here, each of the appellants were implicated for their complicity not on the basis of solitary evidence only, such as confessional statement of R.N. Zutshi, but also other materials: phone call records during the various past occasions when the passenger couriers ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider it important to devise the most adaptable and logical methodology to arrive at the approximation of meter-wise quantity deducing the same from the baggage weights reported by Airlines. 401. On study of weight-metre ratios presented by various AOs and encapsulated in Table-3 of the notice, I note that except the two ratios i.e. 19.54 and 17.62 in respect of 19.6.2000 and 28.8.2000, the other ratios are immensely eccentric, irrational and unbelievable. It is inconvincible that one k.g. of any quality of silk fabrics can contain just 0.52 mtrs or 1.42 mtrs or 2.2 mtrs. All such ratios range between absurd 0.52 mtrs to 7.28 mtrs per kg. These ratios thus have to be excluded from consideration. 402. The above weight-metres ratios need to be understood in the right perspective. Indubitably, except for the dates 19.6.2000 and 28.8.2000, all the remaining ratios, being illogical, are out of place. I therefore focus on the position on these two dates. As regards 28.8.2000, the goods - silk fabrics in six varieties based on gsm [grams per square metre] i.e. 36, 50.1, 45.7, 52.1, 69 and 73.5 gsm are available. The requisite details of these goods i.e. variety-wise total weight in k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that contentions canvassed by the noticees on weight metre ratio are devoid of substance and thus not sustainable. I accept the proposed ratio of 17.62 as the true representative weight - metre ratio fairly and squarely applicable to the unassessed silk fabrics brought in on 24 occasions during 17.8.97 to 21.8.2000. As is evident from the above extract, the weights per metre varied in past instances from 16.79 metre per kg; 16.50 mtrs per kg; 19.54 metre per kg, to 21.81 metre per kg and 21.83 metre per kg. 39. This Court also notices that the Commissioner did not rely only on the weight metre ratio, but also considered another criterion: the baggage weight on the basis of vehicle capacity on five dates. For this purpose, he took up the issue date-wise, noticing that on 10.04.2000, 22.05.2000 and 14.08.2000, the baggage weight of group passengers, as reported by Airlines was Zero but an MMV Canter with 3750 kg capacity of a transporter was used on all the three occasions. On several occasions, the group passengers had hired commercial vehicle of lower capacity, i.e. Tata 407 with loading capacity of 2200 kgs when the baggage weight was not that substantial. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uck weight relative to that date. The Court does not find any infirmity with this approach warranting interference with a pure finding of fact. 40. Furthermore, the Court notices that the DRI, during investigations, had obtained passenger manifest copies from Krygystan Airlines to determine the quantity of silk fabrics brought in on different dates, by various passengers. Many noticees had questioned this, alleging firstly that Customs Form Serial No.70 in Customs Manual does not indicate any column requiring disclosure of the number of packages or weight of baggage carried by a passenger; secondly that a copy of passenger manifest relied upon by DRI was not made available to the Customs officers at the time of clearance. It was argued that as to what was the quantity or description of goods brought in by a passenger, the manifest relied upon by the DRI could not be inferred. The Commissioner dealt with this aspect in paras 396-397 of his order. Noticing that while the form did not require disclosure, he stated that - A passenger manifest is created in several formats and filed with different agencies by the Airlines depending upon what are the requirements indicated by that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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