9911796707
TMI Blog2019 (3) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... o why his personal presence, along with an employee, was required for this purpose. There is no material to show that it was impossible for him to participate [along with others] in the removal of a padding from a car door. In any event, it is not just his physical participation, but his presence to oversee the operation that has been found against him. In these circumstances, coupled with the fact that he operates a jewellery business, the findings of the authorities that his presence was not merely coincidental, but that he was the intended recipient of the smuggled gold, cannot be faulted. Although the Tribunal's analysis of the facts and the contentions of the parties was somewhat sketchy, this is not a case of complete non-application of mind or unreasoned acceptance of the findings rendered by the authorities. The Tribunal being the final arbiter of facts, it is no doubt vested with the duty to consider the material on record independently and render its findings upon the same. It is settled law that no judgment, even one affirming orders of the authorities or courts below, can be unreasoned. However, there is no uniform standard to determine the level of detail req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 17 gold bars of 1 kg., each from Nepal, which was concealed therein. Three other persons were seated in the said vehicle. One additional gold bar of 1 kg. was subsequently recovered from one of the seats pursuant to a statement made by one of the persons alleged to have been involved. It was further alleged that the appellant was the owner of a jewellery shop and had procured the gold from a contact in Nepal in contravention of the Act. The gold bars were stated to have been valued independently at ₹ 5,56,92,000/- and were seized by the DRI, along with the said vehicle. The appellant and the others involved were summoned and their statements recorded under Section 108 of the Act. He is stated to have admitted the allegations against him. The intercepted persons were also arrested under Section 104 of the Act and were released on bail by an order of the competent Court dated 07.12.2013. When he was produced before the Magistrate, the appellant retracted the statement made to the customs authorities, stating that he had been coerced into making it. 4. The appellant filed a reply dated 27.08.2014, to the SCN, in which he denied any concern with the gold or the smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctor appears to be only an afterthought. His defence of being physically handicapped person, hence incapable of such unlawful activities, is also unacceptable. 23.2 As per the voluntary statement recorded under Section 108 of the Customs Act, 1962, Shri Chander Prakash Verma had taken the delivery of smuggled Gold on previous occasions also. The willful and deliberate involvement of Chander Prakash Verma in the smuggling of Gold has rendered him liable for penalty under Section 112 of the Customs Act, 1962. 23.3 In his submissions during the personal hearing, the Noticee's advocate submitted that he had retracted his voluntary statement made earlier before the DRI under Section 108 of the Customs Act, 1962. He informed that the Noticee is a small time jeweler running a proprietary firm in the name of G.P. Jewellers in Chandni Chowk, Delhi. He further submitted that he is a handicapped person suffering form disability and on the day under consideration he had merely gone to the Shroff Hospital, Daryaganj, Delhi for seeking an appointment for his old mother who is a regular patient of the hospital. The Noticee claims that he had stopped at the place of Gold seizure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part in this case of Gold smuggling in his voluntary statement given to the DRI Officers under Section 108 of the Customs Act, 1962 dated 22.11.2013, wherein he had admitted that he had fixed the date and time of taking gold delivery with his distant relative Sh. Ramuji. The said Ramuji had informed about the vehicle number carrying the gold and had told him that a person named Shankar would be coming in a white coloured Scorpio vehicle bearing Reg. No. BR-30-P-1251 and he had fixed with him the place. 23.9 Thus it is clear that the Noticee had already admitted to his role in this case of Gold smuggling in his voluntary statement given to the DRI Officers dated 22.11. 2013. The later retraction of this statement is only an afterthought and a desperate attempt by the Noticee for some kind of defence, which considering the facts and circumstances of the same does not appear to be tenable. The preponderance of evidence shows that the Noticee was involved in gold smuggling and time of Gold delivery. 6. The Commissioner (Appeal), by an order dated 22.07.2016, dismissed the appellant's appeal by an ex-parte order, as the appellant had apparently not appeared for the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s when the co-accused persons have chosen not to participate in the adjudication proceedings or filing Appeal against the impugned Order, calling them for cross examination would have been of no consequence except for delaying the adjudication proceedings. Therefore, following the law propounded by the Hon'ble Madras High Court in the matter of A.L. Jalaludeen- 2010 (261) ELT 84 (Mad) that principles of natural justice are not violated by now allowing the Appellant to cross examine witnesses. I hold that the arguments of Appellant that the order deserves to be quashed for having been passed without allowing cross examination is not sustainable. 5.5 In my considered opinion, his guilt of being involved in the alleged smuggling having been brought out in the Show Cause Notice as well as in the Order-in-Original, submissions of the Appellant Chander Prakash Verma made out in the Appeal Memorandum and advanced during the course of hearing are devoid of merit. I hold that the impugned Order insofar as the same relates to Appellant Chander Prakash Verma is unimpeachable. I am in agreement with the findings of the adjudicating authority that the appellant who was the intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (12) STR 798 (Tri. Chennai) (2) Commissioner vs. Sushil Kumar Kanodia -2015 (319) ELT A73 (Mad) (3) Birendera Kumar Singh vs. CC, Lucvknow-2006 (198) ELT 460 (Tri.Del) (4) Ashwin S. Mehta vs. CC, Mumbai-2006 (197) ELT 386 (Tri. Mum) (5) Narayan Das vs. CC, Patna -2004 (178) ELT 554 (Tri. Kol.) (6) Shard Dugar vs. CC, ICD, ND-2003 (151) ELT 321 (Tri. Del.) (7) Narendra B. Jain vs. CC (Adj.) Mumbai-2014 (304) ELT 563 (Tri.Mum) (8) M.N. Furniture vs. CCE, Belapur-2017 (347) ELT 373 (Tri. Mum) 4. On the other hand, Shri R. K. Manjhi, Ld. AR for the Revenue supported the impugned order. He submits that the statements were recorded under Section 108 of the Customs Act, 1962 where they have confessed their involvement in the smuggling of the gold. He submits that appellant is running proprietorship firm in the name of G. P. Jewellers dealing in gold in Chandni Chowk, New Delhi. Thus, it is clear that the disability/ handicap of the appellant does not prevent him from running his jewellery business and carrying out its day-to-day affairs so being handicapped is not a ground. 5. After hearing both the parties at length and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef can be provided to the appellant. Hence, we sustain the impugned order alongwith the reasons mentioned therein. 9. In the result, appeal filed by the appellant is dismissed. 8. In support of the appeal, learned counsel for the appellant argued that the reliance of the customs authorities and the Tribunal upon the retracted statement of the appellant, and the fact that he is a goldsmith, is insufficient to uphold the order or penalty. Learned counsel emphasized that follow up investigation by the DRI did not recover any incriminating evidence from the residence or shop of the appellant and that no telephonic contact between the appellant (or his employee) and the alleged sender of the gold from Nepal has been established. In the alternative, she urged the Court to reduce the quantum of penalty imposed. Learned counsel also referred to the order of the Chief Metropolitan Magistrate granting bail to the appellant, and to the judgments of the Gauhati High Court in Basudev Das vs. Union of India (2011) 272 ELT 668 (Gau.), and the Madras High Court in B. Laxmi Chand vs. Government of India (1983) 12 ELT 322 (Mad.) and D.V. Kishore vs. Commissioner of Customs (2017) 350 ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete non-application of mind or unreasoned acceptance of the findings rendered by the authorities. The Tribunal being the final arbiter of facts, it is no doubt vested with the duty to consider the material on record independently and render its findings upon the same. It is settled law that no judgment, even one affirming orders of the authorities or courts below, can be unreasoned. However, there is no uniform standard to determine the level of detail required, so long as the rationale of the decision is clearly discernible. 12. A few decisions of the Supreme Court make this position clear. In Madhya Pradesh Industries Ltd. vs. Union of India and Ors. (1966) 1 SCR 466 at page 473 [placitum C ], the Court held as follows: ..That apart, when we insist upon reasons, we do not prescribe any particular form or scale of the reasons. The extent and the nature of the reasons depend upon each case. Ordinarily, the Appellate or Revisional Tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xxxx 14. Assuming, that by necessary implication this Regulation also requires the appellate authority to give the reasons, still its order cannot be invalidated, as we find that it has discharged its obligation by considering the records and proceedings pertaining to the disciplinary action and the submissions made by Grover. In other words, the order clearly demonstrates that the appellate authority had applied its mind not only to the proceedings of the enquiry, but also the grounds raised by Grover in his appeal and on such application found that there was no substance in the appeal. The legal position was formulated in the following manner in Divisional Forest Officer, Kothagudem and Ors. Vs. Madhusudhan Rao (2008) 3 SCC 469: 20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of quantum of penalty. The High Court affirmed an imposition of penalty in circumstances similar to the present case, but reduced the amount of penalty from ₹ 2 lakhs to ₹ 1.5 lakhs. Although there can be no automatic application of precedent to the issue of quantum of penalty, we also find that the factual situation in that case was significantly different from the present case, inasmuch as, the incident was of 1999 [as opposed to 2013, in the present case]; the quantity of gold was approximately 1.6 kilograms [as opposed to 18 kilograms, in the present case]; and the person concerned was found to be a petty paan shop owner, who had recently entered into smuggling to augment his meagre income [as opposed to the present appellant, who owns a jewellery shop]. 16. The judgment of the Madras High Court in B.Laxmi Chand (supra) found the SCN and the orders of the authorities to be vitiated by non-application of mind inter alia with regard to the applicable provision of Section 112 of the Act. The present case does not suffer from any similar infirmity as the facts have been discussed in detail in the SCN, the adjudicating order as well as the Commissioner s ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
