9911796707
TMI Blog2016 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ize filing of appeal by Revenue did not hold that the order appealed was neither legal nor proper, while such objection was neither made by respondents earlier before Tribunal in the first round of litigation nor before Hon'ble High Court in appeals. SL. No APPEAL NO. MISC APPLICATION NO. RESPONDENTS SL. NO APPEAL NO MISC APPLICATION NO. RESPONDENTS 1. C-59/2007 C/M/459/2012 Kamal Bajaj 8 C-66/2008 C/M/67/2012 D.S. Nanadal 2. C-60/2008 C/M/01/2012 V.S. Teotia 9 C-67/2008 C/M/2/2012 Neeraj Kumar 3. C-61/2008 C/M/75/2012 Parveen Teotia 10 C-68/2008 C/M/3/2012 Yashvir Singh 4. C-62/2008 C/M/74/2012 J.A. Khan 11 C-69/2008 C/M/68/2012 Kanwal Suma n 5. C-63/2008 C/M/69/2012 Vinod Kumar [Kain] 12 C-70/2008 C/M/5204/201 2 S.D. Rajpal 6. C-64/2008 C/M/240/2012 R.K. Dakolia 13 C-71/2008 C/M/213/2012 S.A. Lamb 7 C-65/2008 C/M/70/2012 A.K. Varshney 14 C- 72/2008 C/M/214/2012 V.K. Bharadwaj 2. Hon'ble High Court of Delhi disposing appeals of Respondents, by order dated 23.05.2011 held as under: "From what we have indicated above and on going through the orders passed by the Adjudicating Authority, it becomes manifest tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the quantity and value of import was not disclosed by that passenger. 4.2 In terms of Para5.6 EXIM Policy 1997-2002 read with Section 3(2) and (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993, the goods of above description and nature were prohibited/restricted and import thereof in contravention of the said provisions is liable to confiscation under section 111 of the Act as smuggled goods in terms of section 2 (39) thereof. Accordingly those were seized. 4.3 Ms. Olga was arrested on 29th August 2000 as smuggler of aforesaid goods and being denied bail by learned ACMM, was before Hon'ble High Court of Delhi in bail application as reported Olga Kozireva v. UOI on 18.5.2001 - 2001 Cri U 3701: 2002 (63) DRJ 183: 2002 (80) ECC 45. Her arrest paved the way for extensive enquiry and investigation. In her statement under section 108 of the Act, she revealed about her frequent travel to India during last three years prior to 28.08.2000, bringing Chinese silk during such visits and stayed in different hotels in Paharganj, New Delhi which was testified by pass port. 4.4 Investigation revealed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itish Kedla, Anup Singh, Khem Singh, Arun Dokanla, G opalDokania, Sanjiv Jain, Mahender Jaln, Anudeep Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan,Sana k, NaziraI, RNZutshl , Yashpal, Vinod Kumar(Kaln), VSTeotia, RK Docoliya , AKV arshney, DSN and al Nitish Kedla, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokanla, Sanj'Main ,Mahender Jain, Anudeep Singh 22-5-00 K2 545 18296 12,44,155 7,61,423 OlgaK Nazlra I and Shahlo A Mamoor Khan,Sana K TRKReddy, Sudhlr Sharma, Neeraj Kumar Nitish Kedia, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko Mamoor Khan, Sanak, Nazlra, Isamu* K MMitrushov Nitish Kedia, Anup Singh, K hemSingh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 1-7-00 HY429 8220 5,58,946 3,42,075 Olga K Mamoor Khan, Sana k, SudhlrSharma, Naz Ira, Neeraj Kumar. Nitish Kedia, Anup Singh, Khem Singh, ArunDokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh ¾-7-00 9Y219 14448 9,82,491 6,01,285 Olga K Mamoor Khan, Sanak, Yashpal Nitish Kedia, Anup Singh, Khem Singh, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va DHAgha,Olga K*NaziraI*, *notpassengersbut assessed. Mamoor Khan, SanakSadullah, Zanjir Khan, Pradeep Rana NitishKedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, M ahenderJain, Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 2,66,759 Nazira I DIIAgha, MamoorKh an,Sadullah, Zanjir Khan, Olga K,Prade epRana,SA Lamb, VK Bhardwaj Nitish Kedia,Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania,Sanjiv Jain ,Mahender Jain, Anudeep Singh 21-8-2000 K-2 545 31425 21,36,878 13,07,759 Merkulova L DilAgha, Mamoor Khan, Sanak Sadullah, ZanjirKhan, R.N. Zutshi, Olga K*, Nazira *, *notpa ssengerbutassesse d. Nitish Kedia, AnupSingh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain ,Mahender Jain, Anudeep Singh Total 421245 2,86,44,64 0 1,75,78,32 2 4.5 The Respondent Customs Officers in column F of the Table above were in collusion with others and were found to be abettors to the clearance of the smuggled goods on different dates as appearing in Column 'A' of the Table above. They were instrumental to the escapement of the said goods from Airport without payment of duty and proper adjudication under law and such escap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and brought out nexus of offender passenger viz., Olga K. Gulia etc., with Respondent Customs Officers who facilitated customs clearance of smuggled goods in consideration of ill gain. 4.9 Investigation unearthed evidence demonstrating conscious and active involvement of Respondent Customs Offices whose name appears in column "F" of TABLE - 1 in clearance of smuggled goods of the quantity and value as depicted in that Table. Their negotiation and settlement with Mamoor Khan for payment of illegal gratification surfaced. 4.10 Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines in his statements dated 26-12-2000, 30-12-2000 and 1st Feb., 2001 identified Mobile No. 9811135921 used by Mamoor Khan. These phones were used in smuggling operation to contact the offending passengers and respondent Officers. Involvement of Mamoor Khan in illegal import of Chinese silk fabrics and use of Mobile No. 9811135921 by him was also confirmed by Purshottam Lal Tandon of M/s Ushanak Mai Moolchand, Kaarol Bagh, New Delhi in his statement dated 30th Dec, 2000. Sri Dhaman also stated in his statement u/s 108 of the Act that mamoor mentioned him during November December 1999 that "shift ki guarantee pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls exchanged between him and with Ms. Olga. K.S. A. Lamb admitted to have 2 calls exchanged between him and Olga K, Kanwal Suman admitted exchange of 1 call with Olga K., S D Rajpal admitted to have 6 calls exchanged between him and Mamoor Khan and 2 calls exchanged between him and Olga K. They also identified their telephone numbers which were used in smuggling for contacts. 4.15 TABLE -7 , 11 AND 12 to the SCN read with the statement recorded from R. N. Zutshi as is apparent from Para 79 at page 44 of SCN unerringly demonstrated telephonic contact of Mamoor Khan, Dil Agha, offender passengers with the Respondent Officers and contacts by such Officers with them. The mobile and land line phones used by the Respondent Officers and different persons as discovered by Investigation are tabulated in TABLE - 2 below. The mobile and land line phones used by offending passengers and racketeers are depicted in Table - 3 as under: Table - 2 SI. No Name designation of the Respondent Officers and period of duty in Airport Dates on which Respondent Officer was involved in abetment of clearances of offending goods as per TABLE - 14 of SCN Mobile Number/Land Line used by Respondent Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used Mamoor Khan Installed in Sameer Guest House 3959597 9811135921 9811254485 Activated on 30,08.2000 3930733 Oil Agha 9811065897 3930733 98112 58376 operated from 31.08.2000 4.16 On 23.05.2001 (Ref: Para 163 at page 114 - 117 of SCN) Dil Agha confirmed involvement of Respondent Customs Officers in the smuggling racket and on 12.07.2001(Ref: Para 162 at page 112-113 of SCN) he stated that Respondent Customs Officers were bribed to make clearance of the smuggled textiles. He was arrested and produced before Metropolitan Magistrate, Delhi on 16.07.2001 for the offence committed as reported in DLT 762, 2001 (59) DRJ 421 against his bail application. Statement of Dil Agha also brought out that Mamoor Khan was intimately connected with Ms. Olga Kozireva who was staying in Sameer Guest House as well as his connection with the Respondent Officers. 4.17 One Abdul Qahar who was also a member of smuggling racket was detained in COFEPOSA by order dated 29-01-2001 being involved in smuggling as reported in 2002 III AD Delhi 380, 2002 Cri LJ 1709. Statement recorded from Waliullah on 19.05.2001 before Metropolitan Magistrate u/s 164 of Cr. P.C in State (CBI) V. Ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout payment of duty and proper adjudication: TABLE - 4 NUMBER OF TELEPHONE GALLS MADE BY SMUGGLING RACKET TO THE RESPONDENT OFFICERS AND THE MEMBERS OF THE RACKET Name of the person with whom conversation was made No. Of occasions of contact Period of contact Mamoor Khan 62 occasions Between 1-4-2000 to 25-7-2000 Dil Aga 18 occasions Between 7-5-2000 to 28-10-2000. Ms. Olga 6 occasions Between 3-2-2000 to 28-8-2000 Nazira 2 occasions 30th August, 2000 Dil Aga 10 Occasions 1-9-2000 Onwards. 4.22 Use of mobile phones for clearing smuggled goods in association with Mamoor Khan and Dil Agha was brought to record by investigation as is evident from the Tables 7, 11 and 12 to the show cause notice as well as Table 2 to 4 aforesaid. This corroborated with oral evidence of Sri R N. Zutshi who clearly stated that Sri Praveen Teotia, V.S. Teotia, Vinod Kumar Kain, Yashpal use to talk to the Protocol Superintendents and Officers regarding smooth clearance of cloths of Mamoor Khan brought by the offender passenger Ms. Olga K. and her party. It was also stated by him that Sri Subhash, P. S. Meena, Sri T. R.K. Reddy, Sri Ajay Yadav, and Sri V.K. Khurana, Sri Praveen Teotia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent Officers: {1)3 A Khan, (2) D S Nandal, (3) R K Dacoiya, (4) A K Varshney, (5) V S Teotia and (6) Praveen Teotia In clearance of smuggled goods. They were involved in negotiation and settlement of quantum of illegal gratification for illegal clearance on different dates. 4.26 Smuggling perpetuated for long time and the offending goods escaped levy of duty repeatedly causing serious loss to revenue. In Para 462 of the adjudication order exemplary event of 15-5-2000 was recorded describing how telephonic contacts made when the Flight landed at 9.51 A.M at the IGI Airport. Shri Zutshi talked to Mamoor Khan 4 times before the arrival of the Flight and 3 times after arrival thereof. Table 11 to the show cause notice at page 136 thereof exhibits that mobile phone of Mamoor Khan was in vicinity of IGI Airport, Delhi from 9.52 A.M. to 12.36 P.M. and such phone was in use for clearance of smuggled goods. Involvement of the respondent Officers as member of the team of smuggling could not be ruled out when they were beneficiary of ill gain. 4.27 Nexus, collusion and association of Respondent Officers with offending passengers resulted in free flow of smuggled goods and smuggling rack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the Hon'ble High Court of judicature at Madras distinguished between the evidentiary value of confession under Section 164 of Cr. PC and Section 40(3) of FERA, 1973, corresponding to the provision of section 108 of the Customs Act, 1962. In that case acquittal of the accused by the lower court was reversed by the Hon'ble High Court observing that retraction of confessional statement on the ground that it was recorded under threat and coercion does not help the cause of the noticee. It was held therein that : "in this case, the petitioner would simply say that he was taken to the Enforcement Directorate where he was compelled to give the statement and the same was also written as desired by them and he had to sign on account of threat he would be handcuffed. For the simple reason that the accused person expresses threat and coercion from the officers of Enforcement Directorate, unless this threat and coercion appears to be true, the Courts are not bound to accept that explanation offered by the accused." (Emphasis supplied). But, learned Adjudicating Authority exonerated the respondent officer from charge for no rhyme or reason. 5. Ld. Adjudicating Authority also reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or proper. Therefore appeals of revenue are not maintainable. Reliance was placed on the decision reported in 1996 (84) ELT 34 (Tribunal) and also on the decision of Hon'ble High Court of Gujarat reported in 2008 (232) 775 (Guj.) to support the argument. 7.3 Above arguments were adopted by Shri Bipin Garg, Advocate appearing on behalf of the Respondents in C/63/08, C/64/08, C/66/08 and C/69/08. Ms. Reena Rawat, learned Advocate appearing on behalf of the Respondents in appeal case No.62/08, 64/08, 70/08, 71/08 and 72/08 on the instructions of her senior Shri Piyush Kumar, Advocate also adopted above arguments. Similarly on behalf of Shri Kamal Bajaj in Appeal Case No. C/'59/08, Shri Prem Ranjan, Id Advocate subscribed to the arguments advanced by Shri Narasimhan. 8.1 Revenue represented by Shri Govind Dixit, ld. A.R, per contra, submitted that the matters before the Hon'ble High Court of Delhi in the batch of appeals disposed on 23.5.2011 were "appeals" which arose out of decision of Tribunal reported in 2011(265) ELT 243 (Tri.-Del). Consequent upon remand of those appeals to Tribunal, character thereof remain unchanged and that remain as "appeal" only before Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to the 14 customs officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua these 14 customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would endeavor to dispose of the same within six months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of words "neither legal nor proper" in the order of the Committee does not make Revenue remediless and no hyper technical reading of Review order is desired by law. 8.8 Shri Amresh Jain, ld. DR arguing further for Revenue submitted that "revision", "review" and "appeals" are distinct remedies provided under law. There is no confusion to understand character of each remedy. Committee took conscious decision u/s 129D of the Act to file application before Tribunal so as to seek remedy of appeal in terms of Section 129A of the Act since interest of Revenue was prejudiced. Application was thereby made which was treated as appeal by Tribunal in the first round of litigation for which there was no objection at all by any of the Respondents. Therefore jurisdiction if not challenged at the first instance that cannot be challenged after the matter came back from Hon'ble High Court for rehearing on merit only. 8.9 It was further submitted that the review contemplated by Section 129D is an administrative exercise to examine appealability of the impugned order so as to safe guard interest of revenue. A hierarchy has therefore been prescribed to do such exercise. Points for decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order of the Committee of Chief Commissioners enables to construe that remedy of appeal alone was sought by Revenue. The term "may" used in Section 129D of the Act even entitles the Committee to call for the record suo moto for examination so as to satisfy whether order of authority below needs remedial measure. Accordingly, his emphasis was that appeals were filed lawfully and the Committee did not travel beyond its jurisdiction, objection of Respondents being devoid of merit are to liable to be dismissed following direction of Hon'ble High Court to dispose each appeal on merit. 9. In reply to the submissions of Revenue, it was argued on behalf of the Respondents that question of maintainability of an appeal may be raised at any stage, when that goes to the root of the matter. Reliance was placed on the ratio laid down by the Apex Court in Kiran Singh & Others - AIR 1954 SC 340. Reliance was further placed by respondents in the case of Orient Paper & Industries Ltd. and Another reported in [1998]7 SCC 303 to explain that when a matter goes to the root of maintainability of an appeal, that can be raised at any stage of the proceedings including the stage of execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made thereunder : Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of or connected with such appeal and whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of, - (a) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is five lakh rupees or less, one thousand rupees; (b) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where the amount of duty and interest demanded and penalty levied by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the opinion that the decision or order passed by the Commissioner of Customs is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order. (2) The Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any officer of Customs subordinate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order. (3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or sub- section (2), the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter before a Revisionary Court but not before a committee of the nature and stature prescribed by section 129D of the Customs Act, 1962. Further, the decision in that case arose under the Haryana Rent Control Act which did not provide second appeal remedy against the order passed in appeal by the appellate authority under sub-section (2) of section 15 thereof. Consequently that Act provided remedy of revision to the High Court against an order passed or proceedings taken under that Act. But under Customs Act, 1962 appeal remedy being available to Tribunal against an order of a Commissioner, no authority below Tribunal is empowered under law to review such order. This clearly shows that the committee was therefore not empowered to exercise any power of Review under section 129D of the Act, except forming an opinion that the order sought to be appealed is neither legal nor proper. 10.8 It may be stated that while exercising revisionary jurisdiction the attributes of legality and propriety of an order is intended to be tested under Haryana Rent control Act. Therefore it cannot be presumed that the Committee set up u/s 129D of the Act has same power of revision or review to test legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous which manifestly appeal to be unjust, there should be no interference. Therefore the expression legal and proper being used in the context of exercise of Revisional power by High under the Haryana Rent Control Act, the Respondent misplaced the citation and fail to gain benefit of that judgment in absence of review or revisional power conferred on the Committee of Chief Commissioners. It may be stated that Review literally and even judicially means re-examination or reconsideration of evidence which not the object of section 129D of the Customs Act, 1962. Basic philosophy inherent in Review is the universal acceptance of human fallibility - S. Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595. 11.1 Right to appeal being a statutory conferment by section 129 A of the Act, it is undeniable to an aggrieved. Such a right is also substantial and no procedure shall be tyrant to abrogate such right. Accordingly the procedure prescribed by section 129D of the Act by no means can be construed to defeat the right of appeal vested on Revenue u/s 129A of the Act. Apex Court in the case of Collector v. Rohit Pulp Paper Mills 1998 (101) ELT 5 (SC) held that the provisions of section 35B (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 2000 onwards. He was actually collecting the money from Shri Mamoor Khan as is revealed from Table-13 of Show Cause Notice. 12.2 The goods brought by the offender passengers of CIS country led by Ms. Olga, violating the provisions of Section 11 of Customs Act, 1962 rendered the same to be confiscated being prohibited one. This respondent having facilitated clearance of such goods abetted the smuggling racket to succeed in their mission without informing to the higher authorities. Therefore, he should be penalised. 12.3 Finally it was argued by Revenue that in view of aforesaid submissions and various evidence recorded in Para 4 above, appeal of Revenue may be allowed since adjudication was made on erroneous premises to exonerate the Respondent. SUBMISSIONS OF RESPONDENT 13.1 Ld. Counsels Shri Piyush Kumar and Shri Prem Ranjan appearing on the last occasion of hearing submitted that this respondent was not at all involved in any clearance of smuggled goods and there was no phone contact made by him with the CIS country passengers. By merely basing on the statement of Mr. Zutshi, this respondent cannot be implicated to the charge and penalised. Ld. Adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his knowledge about Mr. Mamoor Khan, Mr. Dil Agha and Ms. Olga. 18. When the statement of Shri RN Zutshi was confronted to this respondent, he stated that April to July, 2000 rotation took effect in the beginning of May, 2000 and he was not involved in the clearance of the smuggled goods. He explained that on 12.06.2000, he was allotted duty at Gate No.8 (general duty) and he was not aware of anything happened in the airport. He stated that on 04.07.2000, his duty was to x-ray hand baggage of passengers and he has not come across with the alleged goods cleared without duty. He further stated that he was on duty at the gate on 10.07.200 and he simply showed his innocence about the clearance of the contraband goods or commercial items. But he narrated that a group of women coming from CIS country were bringing the smuggled goods. 19. Ld. Adjudicating authority stated in his order at page 277 that the only material against the respondent was the statement of Mr. Zutshi and about his negotiations and decisions on monetary consideration to be charged for the clearance of smuggled goods. But, there was no abatement committed by him in the absence of any corroborative evidence in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent Officer against Revenue as an abettor in association with the smuggling racket and facilitated clearance of the smuggled goods. He acted mala fide to make ill gain from illegal gratification. Import manifesto proved arrival of the offending goods on different occasions and the respondent was an abettor to make clearance thereof illegally in association with other Respondent Officers on the respective dates. Such fact was established from the evidence of Shri R.N. Zutshi, who has already lost his appeal before Tribunal in the decision reported in 2011 (265) ELT 243 (Tri-Del). 24. Members of smuggling racket disclosed identity of the Respondent Officer who was intimately and consciously connected with the commitment of the offence alleged against him. He was instrumental to make the smuggling successful on the respective dates as is apparent from Table - 1 in consideration of illegal gratification. Trail of evidence discovered by investigation proved active involvement of respondent in abetting the commissions and omissions under the Act for which he is punishable since the goods imported were confiscable. 25. Smuggled goods reached destination thereof proving escape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n why calls were made by him and also calls came to his phone as appearing in TabIe-2 and 4 afore said. Illegal clearance made on the respective dates brought the Respondent Officer to scrutiny of law. As a co-sharer of illegal gratification revealed by the associate Officer Shri R.N. Zutshi and others as well as Dil Agha and other members of smuggling racket, proved his association with the racket and he had questionable conduct. Echoing evidence discussed in para-4 hereinbefore, does not entitle the Respondent to be exonerated from charge. Discriminatory approach of the learned Adjudicating Authority vitiates the adjudication being irrational in so far as this Respondent is concerned. 30. It may be appreciated that no one contacts another without any intent good or bad or in vacuumed mind. His object of contact is well known to him and that is secreted in his mind till revealed by his action. In Para 28A of the adjudication order, frequent contacts made by Ms. Olga Kozireva through cell phones on different occasions to different persons came to light. Para 29 of the impugned order also brought out such fact from the statement recorded on 13-12-2000 from Shri Sandeep Bhatia, Secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cogent evidence discussed in para-4 hereinbefore demonstrate concern of the respondent in clearance of smuggled goods without payment of duty. 32. The term "concerned" appearing in sectionll2 of the Act has been explained by Apex Court in the case of Sachidananda Banerji v. Sitaram Agarwala 1999 (110) ELT 292 (SC) laying down the law that this term is to be given wide interpretation and even if a person has no physical connection with the smuggled goods, he is liable if he is interested or consciously takes any steps to promote smuggling. In the present case, the respondent officer promoted smuggling having his conscious knowledge of the illegal import made to India on the respective date as mentioned in Table 1 with his ill motive to make ill gain. He was aware of the origin of the goods and provisions relating to EXIM policy prohibiting/restricting import of Chinese silk to India. But he had oblique motive behind clearance of the imports made by offender passengers when they brought commercial quantities with them and were in touch with the Respondent Officers for illegal clearance thereof. It has been laid down in the case of Bhagwan Swarup and Others v. State of Maharasht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny party similar to the one in a criminal proceeding. Following the ratio laid down in CIT v. Durga Prasad More 82 ITR 540, 545-47 (SC) it may be said that science has not yet invented any instrument to test the reliability of the evidence placed before a Court or a Tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to reliability of a piece of evidence. But in that sphere the decision of the final fact finding Authority is made conclusive by law. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. A fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pavunny v. AC 1997 (90) E.L.T. 241 (SC). An act of fraud on Revenue is always viewed seriously. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. 40. It has been held by Apex Court in the case of Commissioner of Customs v. Essar Oil Ltd. 2004 (172) E.L.T. 433 (SC) that by "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigin and destination of goods as well as quantity and value thereof being posted in sensitive place of Customs as a responsible officer under law. 44. Having been associated and colluded with the smuggling racket on the dates mentioned in TABLE - 5 aforesaid to satisfy his ill will being a co-sharer of illegal gratification and caused loss to revenue and his association with the racket proved from material facts and evidence discussed hereinbefore, the respondent failed to be a stranger to the incidence of levy and escapement of duty. He made deliberate breach of law. As perfect proof with mathematical precision in this imperfect world seldom exists, preponderance of probability was in favor of Revenue, Respondent was guilty of the offence committed by him. 45. Except raising technical pleas, the Respondent failed to detach himself from the team of guilty Officers and members of smuggling racket. His conscious involvement in abetment of clearance of the offending goods was proved. He was cause to the escapement of duty liability and adjudication of the offending goods. That occasioned the offending goods to reach the place of trading. Therefore he failed to go out of the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to 14 Custom Officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua, these 14 Customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would dispose of the same within six months. Parties shall appear before the Tribunal on 13.06.2011." 3. The Commissioner by the impugned order, after considering the evidence on record against each officer who are the Respondent's in this group of appeals, after considering their defence, exonerated them and has decided not to impose any penalty on them under section 112 of the Custom Act, 1962. This part of the order of Commissioner was reviewed by Committee of Chief Commissioners under section 129D(1) of Customs Act, 1962 and the Committee directed the Commissioner to file Appeal against his order in respect of these 14 officers. Earlier, the Tribunal had allowed the Revenue's appeals and had imposed penalty of Rupees one Lakh under section 112 of the Custom Act. 1962 on each of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho are alleged to have been using the above mentioned Uzbek lady passengers as carriers of smuggled goods. The Commissioner while imposing penalty on the custom officers namely Sh. Sudhir Sharma, Sh. Ajay Yadav, Sh. Yash Pal, Sh. T.R.K. Reddy, Sh. R.N. Zutshi, Sh. V.K. Khurana, Sh. Pradeep Rana and Sh. Anil Madan, had exonerated respondents in this group of appeals namely:- Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh. Yashvir Singh, Sh. Kanwal Suman, Sh. S.D.Rajpal, Sh. S.A. Lamb and Sh. V.K. Bhardwaj and did not impose any penalty on them. In this group of appeals we are concerned with the question of imposition of penalty on these 14 officers only. Each of these 14 officers is alleged to have abetted the smuggling activities of the Uzbek lady passengers on certain dates and the evidence in this regard in form of a Chart is summarized as under:- Name & Designation of the Respondent and period of posting at the Airport. The date on which the Respondent is alleged to be involved in abetment of smuggling of Chinese Silk. Mobile/Landline telephone no. used by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mobile)-9811009428 25Telephonic Contacts with Sh. Mamoor Khan Not named by anybody. Sh. Yashvir Singh -Superintendent 24.07.2000 (Mobile)-9811085897 4telephonic contacts with Sh Mamoor Khan & one with Sh. MS Olga Kozireva, the lady passenger. Not named by anybody. Sh. S.D.Rajpal Inspector 04.08.2000 (Mobile)-9811008819 8telephonic contacts with Sh. Mamoor Khan and one telephonic contact on 04.08.2000 with Sh. Dil Agha. Not named by anybody Sh. S.A.Lamb Preventive Officer 18.08.2000 (Mobile)-9810055243 Two telephonic contacts with Sh. Mamoor Khan and one with Olga Kezireva on 18.08.2000 Not named by anybody. Sh. V.K.Bhardwaj -Superintendent posted fromAug.'99 to Juie'2000 18.08.2000 (Mobile)-9810032247 (Land Line) - 7102235 One telephonic contact with Sh. Mamoor Khan & one contact with MS Olga Kozireva on 18.8.2000. Not named by anybody. 4.1 The Commissioner in the impugned order while observing that the standard of evidence required in quasi judicial proceedings under the Provisions of Custom Act, 1962 is "preponderance of probability" and not the "proof beyond any reasonable doubt", has held that the evidence on record against these Respondents is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, is possible. The Revenue's contention is that once an order has been passed by the committee of Chief Commissioner (Reviewing Authority) under section 129D(1) directing the Commissioner to file an application before the Tribunal for correct the determination of the points arising out of the order as mentioned in the Review Order and once in pursuance such an order passed under section 129D(1), the Commissioner files an application before the Tribunal under section 129D(4), in terms of the Provisions of Section 129D(4) such an application is to be treated as an appeal filed before the Tribunal against the Commissioner's order, and once the application filed under section 129D(4) is treated as an appeal, no distinction can be made between such an appeal filed by the Revenue and the Appeal filed by the assessee under section 129 A(1). It was, therefore pleaded that the appeal filed by the Revenue under section 129D(4) read with section 129D(1) cannot be treated as a Revision Application. It was also pleaded that since this point was not raised in the first round of litigation before the Tribunal, the same cannot be raised in course of de-novo proceedings and the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons as discussed below:- 5.1.1 There is difference between an appeal under section 129 A(1) filed by a person aggrieved by the order appealed against, and an appeal filed by the Revenue. While appeal filed under section 129 A(1) by "any person aggrieved" by the order, is continuation of the proceedings before the Original Adjudicating Authority or the first Appellate Authority in which the findings of the Commissioner/Commissioner (Appeals) on any point of fact or the point of law with which the Appellant is aggrieved can be challenged, and in which the Tribunal as the Appellate Authority has to reconsider the lower authority's decision/findings on all such points raised in the appeal, this is not so in case of appeal filed by the Revenue. As is clear from the wordings of Sections 129 A(2), the appeal against order passed by the Commissioner (Appeals) can be filed by the Authorised Officer only if the "Committee of Commissioners" is of the opinion that the order passed by the Commissioner (Appeals), is not legal or proper or if there is difference of opinion between Commissioners constituting the Committee, on reference made to the Jurisdictional Chief Commissioner, the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point or points on which accordingly to its view, the Commissioner's order is not legal and proper and the application under section 129D(4) is to be filed by the Commissioner before the Tribunal only for correct determination of the points specified in the Committee's/Board's Order. Now the questions arises as to what is illegality or impropriety. The illegality means an order being patently contrary to the Provisions of the Law or the order having been passed in gross violation of the principles of natural justice or having been passed by Commissioner/Commissioner (Appeals) by exercising powers outside his jurisdiction or going beyond his powers. An order would be illegal if on the basis of the facts on record and the provisions of laws only one view is possible and the adjudicating authority has taken a different view. If, however, on the basis of the facts on record and the provisions of law more than one plausible views are possible, and the adjudicating authority has taken one of such plausible views, the order cannot be said to be suffering from a material illegality. The impropriety means the order having been passed by the Commissioner totally ignoring some po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 129D(1) do not use the word 'revision application' and the application filed under section 129D(4) is to be treated as an appeal before the Tribunal, the appeals filed under section 129 A(2) or section 129D(4) before the Tribunal have to be treated as revision, as from the language of these sections, it is clear that the scope of the appeals filed by Revenue is confined only to the points on which according to the Reviewing authority, the impugned order is not legal or proper and this is precisely the scope of a revision proceeding. 5.1.2 The power under section 129D(1) of suo moto calling for and examining the records of a proceeding in which a Commissioner has passed an order as an adjudicating authority for satisfying itself about its legality or propriety and if warranted, taking corrective action by directing the commissioner to file an application under section 129D(4) to the Tribunal for correct determination of the points arising out of the Commissioner's order, as mentioned in the order issued under section 129D(1), exercised by the Committee of Chief Commissioner, or as the case may be, by the Board in case of difference of opinion between the Chief Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR [2002] SC 110 has held that the power of interference under Article 227(1) of the constitution which is exercised by a High Court over all courts and Tribunals within its jurisdiction in exercise of its power of superintendence, cannot be resorted to merely because the High Court takes a different view on the merits and generally it is limited to the want of jurisdiction, errors of law, perverse findings, gross violation of natural justice etc. The Apex Court in the case of Mani v. Phiroz AIR [1991] SC 1494 has held that High Court should not interfere with a findings of fact within jurisdiction inferior of Tribunal, except where the decision of the Tribunal is perverse or not based on any material whatsoever or the conclusion arrived at is such that no reasonable Tribunal could possibly have come to, or it has resulted in manifest injustice. In the case of Khimji Vodhu v. Premier High School AIR [2000] SC 3495, the Apex Court has held that the Jurisdiction under the powers, under Article 227 must be sparingly exercised and should be exercised to correct the errors of jurisdiction and the like, but not to upset pure findings of fact which falls in the domain of appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other in his order has appreciated the difference between an appeal proceeding and a revision proceedings. While appeal is a plea by the aggrieved party for a second judgment on the matter, is a continuation of the original proceeding and is a statutory right of the aggrieved party and in the appeal proceedings, the appellate authority can taken a relook at the decision of the adjudicating authority which has been appealed against, the scope of revision is correcting some material illegality or impropriety in the order passed by the lower adjudicating authority. Since the appeal, filed under section 129D(4) read with section 129D(1), as discussed above, is basically a revision proceeding (Commonly called review appeal) initiated on the instructions of Committee of Chief Commissioner/Board in respect of the points of illegality or impropriety in an order passed by the Commissioner of Customs as an adjudicating authority, the scope of such an appeal, filed by the Revenue would be confined only to the points of material illegality or impropriety as pointed out by the reviewing authority Committee of Chief Commissioners/Board in the order passed under section 129D(1) and in these proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of appeal which contain the Committee's view based on "the overall facts and perspective" with regard to imposition of penalty on the 14 Custom Officers (Respondents) under section 112 of the Customs Act, 1962 and authorizes the commissioner to file appeal to the Tribunal. The order passed by the Committee under section 129D(1) is, therefore, an invalid order and on this ground itself the appeals filed by the Revenue have to be dismissed as invalid appeals, as the appeals filed by the Revenue under section 129D(4) read with section 129D(1) are not the appeals for correct determination of the points arising out of the Commissioner's Order on which the Commissioner's decision, according to the Committee, is not legal and proper, but are the appeals for relook at the entire case against the 14 customs officers (Respondents) who had been exonerated by the adjudicating authority. 6. Even if these appeals filed by the Revenue are treated as valid, as discussed above, their scope is confined only to the points in respect of which the Commissioner's decision, according to the opinion of the Committee of Chief Commissioners, is illegal or improper, or in other word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Chinese Silk by the Uzbek lady passengers on the dates, as mentioned above. In case of Sh. V.S. Teotia and Sh. A.K. Varshney, there is evidence of record of one telephone call of about two minutes duration on 09.05.2000 from the landline phone installed at their common residential premises to the mobile no. 9811135921 of Sh. Mamoor Khan. There is neither allegation nor any evidence that these officers had checked the baggage of the lady passengers on the dates mentioned above and had permitted the clearance of their baggage without payment of duty. These officers have not been named either by the Uzbek lady passengers mentioned above or by Afghan National namely.- Mamoor Khan, Dil agha etc. who were receiving the Chinese Silk brought by the Uzbek lady passengers after its clearance without payment of duty. Sh. R.N. Zutshi who in his statement has implicated these seven officers, has subsequently retracted his statement. The allegation made by Sh. R.N. Zutshi against all these seven officers is uniform-negotiating with Sh. Mamoor Khan about the amount to be paid to Customs for facilitating the clearance of the Chinese Silk brought by the Uzbek lady passengers. This allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irport, at that time, as per the area code mentioned in the call records, his phone was not located at the International Airport but was located elsewhere i.e. at Hyatt, Dayanand Colony, CR Park, Shahbad and Palam Airport. The above facts are not disputed by the Department. Just because between the mobile no. 9811009428, which was in the name of Alok Singh, a relative of respondent Sh. Neeraj Kumar and the mobile number of Sh. Mamoor Khan and Ms Olga Kozireva, there were some telephonic contacts, it cannot be presumed that these telephonic contacts had been made between respondent Sh. Neeraj Kumar and Mamoor Khan/Ms Olga Kozireva, as absolutely no enquiry has been made with Sh. Alok Singh in whose name the sim card of this mobile number had been issued by the telephone company. Moreover, as per the call records, on 22.05.2000 and 01.07.2000 when the telephonic contacts had been made, at the time of calls while the officer was on duty at the International Airport, the telephone as per the call records was located in areas far away from the International Airport for which there is no explanation. When respondent was admittedly at the Airport, he could not have been used this mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s respondent, and it cannot be held that the respondents had abetted the smuggling activity of the Uzbek lady passengers and Mamoor Khan as merely from the record of these telephonic contacts whether originating from Sh. Mamoor Khan/ Uzbek lady passengers or from the Respondent, it cannot be presumed that these telephonic contacts were for facilitating the smuggling activities unless the record of telephone contacts is corroborated by some other oral evidence or circumstantial evidence which is not there in this case. In view of this, the Commissioner's order exonerating Sh. Kamal Bajaj cannot be said to be a perverse order meriting interference. 10. As regards Sh. Yashvir Singh- Superintendent (accused of abetment of smuggling on 24.07.2000), Sh. S.D. Raj pa I, Inspector (accused of abetment of smuggling on 04.08.2000), Sh. S.A. Lamb Preventive Officer(accused of abetment of smuggling on 18.08.2000), and Sh. V.K. Bhardwaj - Superintendent (accused of abetment of smuggling on 18.08.2000), the only evidence relied upon by the Department against these officers is telephonic contacts between their mobile numbers and the Mamoor Khan/Dil Agha /Olga Kozireva. These officers have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phonic contact each between him and Mamoor Khan and Ms Olga, merely on the basis of the call record it cannot be said that he was in touch with Sh. Mamoor Khan and Ms Olga for facilitating their smuggling activity when no inquiry in this regard has been conducted with Sh. Mamoor Khan and Ms Olga. In view of these circumstances I hold that the Commissioner's decision exonerating Sh. Kamal Suman cannot be said to be illegal or improper. 12. Thus, even on the basis of evidence on record, there is no case for imposition of penalty on the Respondents under section 112 of the Customs Act, 1962 and therefore, the commissioner's order dropping the penal proceedings against them, cannot be said to be suffering from any material illegality or impropriety. 13. In view of the above discussion, the appeals filed by the Revenue are dismissed. (RAKESH KUMAR) Member (Technical) Since there is difference of opinion between Member(Judicial) and Member (Technical) in terms of the Provisions of Section 129C(5) of the Customs Act, 1962, the Registry is directed to place this matter before Hon'ble President for either hearing the points of difference as mentioned below, himself or const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to various aspects of the case raised in the appeal of Revenue without confining its jurisdiction only to examine whether the illegality or impropriety of the order appealed was examined by the committee? (2) Whether an application filed by a Commissioner under section 129D(4) in pursuance of an order passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the order of the Commissioner. (3) Whether on the basis of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them can be said to be suffering from illegality or impropriety and accordingly the Revenue's appeal are to be allowed'; Or Whether on the basis of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them are legal and proper and accordingly the Revenue's appeal are to be rejected. 2. Ld. Departmental Representative for Revenue argued the case in detail and then submitted written submissions on 09.11.2015 contending as under:- (i) Regarding point Nos.1 and 2 of the difference of opinion, the judgment of Delhi High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contacts with the persons involved in the smuggling racket but also by the surrounding set of circumstances. (xi) The original statement of Shri R.N. Zutshi was credible evidence to be used against all the fourteen respondents. An afterthought retraction cannot be a valid defence and that the credibility of Shri RN Zutshi has been upheld by the Delhi High Court in its judgment in the cases of Sudhir Sharma v. CC and Mahindra Jain & Others Traders v. Commissioner of Customs. His statement brought out particular parts played by each of the 14 respondents in the chain of activities leading to the smuggling. (xii) The Commissioner has recorded at some places that some of the respondents have not given satisfactory explanation regarding the telephonic contacts and still acquitted them. (xiii) Revenue is not required to prove its case with mathematical precision to a demonstrable degree as it only needs to establish preponderance of probability and cited the judgment of Hon'ble Supreme Court in the case of CIT v. Durga Prasad More [82 ITR 540, 545-47 (SC)], wherein the Supreme held that science has not yet invented any instrument to test the reliability of the evidence placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viewed in the context of his arguments/contentions, the evidence against each of the respondents is sufficient to penalize them. 3. Ld. Advocates for the respondents individually submitted their defence essentially stating that (i) the retracted statements of Shri R.N. Zutshi cannot be relied upon to penalize them when there is no corroboratory evidence (ii) in some cases where there are telephone contacts with the persons involved in smuggling, the same have been explained and there is no transcript or details of conversation during such telephonic contacts and therefore even on the basis of preponderance probability, no charge of abetment can be sustained. Individual defences will be further discussed while taking up analysis of evidence against individual respondents during the discussion below. 4. I have considered the contentions of both sides. As regards point (1) and (2) of the difference of opinion, the provisions of Sections 129A(1) and 129D(1) and (4) are reproduced below:- "129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the time specified in sub-section (3). 129D(1) Powers of Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs] or [Principal Commissioner of Customs or Commissioner of Customs] to pass certain orders. - (1) The [Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs]] may, of its own motion, call for and examine the record of any proceeding in which a [Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such [Commissioner] [or any other Commissioner] to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the [Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs]] in its order. [Provided that Where the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the [Principal Commissioner of Customs or Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch application." 5. From the perusal of the aforesaid sections, it is evident that under section 129D, the Commissioner is directed by the Committee of Chief Commissioners to apply to the Appellate Tribunal for the determination of such points arising out of the decision or the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order and the Appellate Tribunal is to hear such application as if it was an appeal against the decision or order of the adjudicating authority. Further, by virtue of Section 129A(4), which comes into play by virtue of Section 128D(4), memorandum of cross-objections filed by the respondent is to be disposed of by the Appellate Tribunal as if it were an appeal. The respondent can file cross-objections against any part of the order appealed against. The Appellate Tribunal can not only go into points arising out of the decision or order as may be specified by the Committee of Chief Commissioners, but also go into the points raised by the respondent in its cross-objections. In other words, the Tribunal is not obligated to confine its scope only to the decision on the points arising out of the order or decision as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have perused the Show Cause Notice. It is seen that in Para 215 of Show Cause Notice the flight numbers and dates are mentioned in respect of the respondents who are alleged to have abetted smuggling of Chinese silk by passengers who came by those flights as is evident from the wording of the said Para which is reproduced below in full for convenience:- "215. From the facts revealed in the investigation as mentioned hereinabove, the details of the relevant date/flight, the quantum and value of silk textiles smuggled, the resultant fraudulent evasion of customs duty, the persons(s) who, jointly or severally, evaded the customs duty and prohibitions, the persons who abetted evasion of the customs duty and prohibitions and person(s) who were concerned in dealing with the smuggled goods on the date/flight are given in table 14 below;- Date & Flight Number Silk Textiles not decl. and not assessed. In meters Value of silk Textiles not decl. and not assessed In Rs. Customs duty Evaded In Rs. Person who, jointly or severally evaded duty on the illicit import Persons whoabetted Persons concerned with dealing with the goods (TRADERS). A B C D E F G 17-12-98 KGA 2003 11338 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ak SudhirSharma.Nazir a, NeeraJKumar. Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh ¼ 7-00 9Y 219 14448 9,82,491 6,01,285 Olga K Mamoor Khan, Sanak, Yashpal NitishKedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-7-00 K2 545 21496 14,61,755- 8,94,594 Olga K Mamoor Khan, Sanak ,Vinod Kumar, RNZut shi, VS Teotla, RKDacollya, AKVarshney, DSNandal NitishKedia, Anup Singh,Khem Singh, Arun, Dokania, GopalDokania .Sanjiv Jain, Mahender Jain.Anudeep Singh 17-7-2000 K-2 545 32654 22,20,450- 13,58,916 Nazira I MamoorKhan.Sanak .TRKReddyKozireva ##not paxbut ataii'oport When flight arrived. Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain,Mahender Jain, Anudeep Singh 24-7-2000 K-2 545 25630 17,42,840- 10,66,618 Merkulova L Dil Agha, Mamoor Khan, Sanak , Sadullah, ZanjirKhan, TRK Reddy.RNZutshi, Anil Madan Kozireva *Nazira*,*notpaxbut in a'portwith flight Yashvir Singh, VinodKumar(Kain), KanwalSuman, NitishKedia, Anup Singh,Khem Singh, ArunDokania.GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f third party and details of telephonic contacts (without transcript). It is, therefore, necessary to settle jurisprudence with regard to the efficacy of such evidence for the purpose of sustaining allegation of abetment of smuggling. There is a series of judgments, which have repeatedly held that statement of third persons in the absence of corroborative evidence cannot be relied upon for imposition of penalties. In the case of Mohtesham Mohd. Ismal v. Spl. Director, Enforcement Directorate [2007 (220) ELT 3 (SC)], it was inter alia held that confession of co- accused cannot be treated as substantive evidence. In the case of Mehui Roadways v. CCE [2009 (246) ELT 660 (Tri. - Ahd.)], CESTAT has held that the statement of co-accused cannot be made as a basis for imposition of penalty unless there is corroboratory material. In the case of Punam Chand Bhotra v. Collector of Customs [1993 (63) ELT 237 (Tri. - Cal.)], CESTAT held that the statement of co- accused is not to be relied upon to implicate the appellant, especially when not corroborated by evidence. In the case of Jai Narain Verma v. Collector of Customs [1995 (76) ELT 421 (Tri.)], the Larger Bench of CESTAT held that the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantamount to mis-appreciation of the principle of preponderance probability. In view of this and having regard to the settled jurisprudence with regard to the inadequacy of statement of third party and telephonic contacts for the purpose of sustaining charge of abetment as brought out in Para 8 above, I agree with ld. Member (Technical) that non- imposition of penalty on Shri Kamal Bajaj by Commissioner cannot be said to be so unreasonable, arbitrary or perverse as to warrant appellate intervention. 11. the case of Shri Praveen Teotia, Shri J.A. Khan, Shri Vinod Kumar Kain, Shri R.K. Dacolia, and Shri D.S. Nandal, the only evidence relied upon by Revenue is the statement of Shri R.N. Zutshi stating that these officers were in touch with Shri Mamoor Khan and engaged with him regarding negotiations of the payments to the customs officers for abetting smuggling of Chinese silk by foreign passengers. In case Shri V.S. Teotia and Shri A.K. Varshney, apart from the statement of Shri R.N. Zutshi, there is evidence of record of one telephone call of 2 minutes duration on 09.05.2000 from the land line phone installed at the common residential premises shared by these respondents. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transcript or record of telephonic conversation, in view of the jurisprudence analysed and settled in Para 8 above, the allegation of abetment and penalty cannot be sustained against these officers even if they had been named by Mr. Zutshi. 14. Regarding Shri Kamal Suman, the officer has been accused of abetting smuggling on 24.07.2000 and 01.08.2000. Revenue relied upon the statement of Shri R.N. Zutshi that Shri Kamal Suman negotiated with Shri Mamoor Khan and Ms. Dil Agha for facilitating smuggling and also one telephonic contact each from his mobile number with Mr. Mamoor Khan and Ms. Olgha Kozireva. The Commissioner observed that this evidence is not sufficient to establish preponderance probability in support of the allegation against him, has decided not to impose penalty on him. The finding of the Commissioner cannot be faulted in the wake of the jurisprudential analysis contained in Para 8 above. 15. I must put it on record that during the hearing these officers vehemently denied the charges and stated that there was no evidence against them. As regards the telephone contacts, they have pleaded that sometimes they used to get telephone calls, which they answered and som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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