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TMI Blog2019 (11) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... d other goods would cross from India into Nepal, the officers of Raxaul Customs were alerted. The said truck entered the examination yard in the custom's area of LCS, Raxaul at about 18.00 hours. The truck was searched in presence of the driver and two independent witnesses. On search, with other similar looking packages of motor parts, a heavy wooden crate was also found. On unloading the same, it was found to contain a grey coloured monolithic rock statue of a seated female deity measuring 90 cms. in height and 42 cms. in width. On perusal of the bills of export filed with respect to the goods loaded inside the said truck and entered for export to Nepal, it transpired that the major part of the goods inside i.e 19 out of 35 packets including the said female statue, were not declared. On query the driver of the truck Sheikh Ahmed disclosed that the goods were loaded from the godown of M/s. Prakash Transport, Raxaul as per the directions of one Mr. Ishwar Chand Goel @ Pappu. The driver led the Customs Officers to the godown located in the Bhartiya Complex, Raxaul and opposite to the office of the said transport company but both the godown and the office were found to be deserted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esence of two independent witnesses besides himself and found the female deity statue inside a wooden crate. He thereafter, led the Customs Officers to the godown but in view of the late hour and the absence of the staff of the transport company, the godown was sealed by the Customs Officer. He further stated that apart from the Manager, Ishwar Chand Goel, Surendra, Hari Narayan and Ramakant were doing the work of loading and unloading in the said transport company. The owner of the transport company was Naresh Goel (appellant herein) who sits in Kolkata but his address was not known to him. The Manager Ishwar Chand Goel works under the direction of the owner Naresh Goel. It was further stated by the driver that he was not aware of the contraband present in the truck but the Manager Ishwar Chand Goel and Binodji could be involved in the smuggling activity. It is noted that Ishwar Chand Goel, even on earlier occasion had gone to jail on account of his involvement in a smuggling case. Thereafter, statements of Customs House Agent, (CHA) Shri A.K. Sinha, the owner of the transport company Naresh Goel besides others, were also recorded. It was stated by the Customs House Agent Shri A.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -declared goods including the antique statue and further the declared goods were supported by fake and duplicate invoices. Accordingly, show cause notices under Section 124 of the Customs Act, 1962 were sent to the Manager Ishwar Chand @ Pappu, the owner Naresh Kumar Goel (appellant herein) and two others. They were asked to show cause as to why the whole goods including the truck should not be confiscated. All the noticees including the ex-Manager Ishwar Chand Goel @Pappu as also the appellant herein submitted their reply to the above notices. In his reply to notice, the ex-Manager Ishwar Chand Goel @ Pappu stated that the transport goods had been loaded in his presence with his direction to park the loaded truck near LCS, Raxaul. No idol was loaded in the truck in his presence. As per his case/reply, it is the driver, the CHA and the Customs Officers who can explain as to from where the statue was managed which was only with the intent to implicate his transport company and its staff. Alleging malafide intention on the Customs Officers it was stated that for no reason the driver and the CHA had not been made noticee in the case. It was further stated by the ex- Manager Ishwar C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er his overt involvement having been proved and intimated to him. Common drafting of defence reply shows that he has been in constant touch with them. His involvement along with Sri I.C. Goel has been established in several other cases in past. Joint Commissioner of Customs, Patna, has adjudged him as the main accused and offender in the Customs Hqrs., Patna's seizure case of 6000 mtrs. cotton jeans of third country origin valued at Rs. 7,50,000/- in his order in original no. 36- ADC/CUS/2000 dated 21.09.2000. In seizure case no. 36/2001 (Union of India vs. Ishwar Chand Goel & others,) a non-bailable warrant was issued against him and on rejection of his anticipatory bail application, he was sent to jail by the Court of P.O., Economic Offence, Muzaffarpur on 12.08.2002. He is presently on bail. Sri Naresh Goel shielded Sri Akhtar Ali, Noticee No. 3 in the instant case who have been found involved in the case of fake exports through Sonauli Border as per Assistant Commissioner, Customs, Sonauli's fax dated 03.06.2002, by transferring him from his Sonauli branch to Raxaul branch. And when Raxaul Customs found Sri Akhtar Ali guilty of misleading them in the investigation of the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Naresh Kumar Goel. That is why he continued to pay salaries and other dues to the wife of Ishwar Chand even after Ishwar Chand absconded from his service as Manager. All these facts show that the entire smuggling activities were committed on the directions of Shri Naresh Kumar Goel. The Commissioner has rightly come to this conclusion that he was personally responsible for all the smuggling or illegal activities of the firms. So far, the confiscation of the goods in concerned, it has been rightly confiscated by the Commissioner. All the goods booked along with statute were used for concealing the statute. Under these circumstances, the order of the Commissioner does not require any interference. The appeal of Shri Naresh Kumar Goeal has no merits and deserves to be dismissed." It is against the order of the Appellate Tribunal rejecting the appeal that the instant appeal under Section 130 of the Customs Act, 1962 has been preferred by the appellant Shri Naresh Kumar Goel. This appeal was heard on 27.6.2019 and when Mr. Saket Tiwary, learned counsel for the appellant raised the following substantial questions of law to maintain the Appeal: "The substantial question of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even proceeded with. On behalf of the Customs Department it was contended that the order dated 16.07.2004 passed by the CESTAT, Kolkata, was a well reasoned order and the same was based on merits after carefully examining the facts and materials on record. It is argued that there was no violation of the principles of natural justice because the copies of the statements and other documents which were relied upon, had been furnished to the appellant and it was for the appellant to give a suitable reply to the show cause notice. It is contended that the CESTAT had placed reliance on the statement of the seized truck driver, the Customs House Agent besides others and both the driver as also the Customs House Agent had in their statements stated that the appellant was the owner of the transport Company and that he looked after the affairs of the transport business from Kolkata where he resided. It was further contended that the statement of the driver of the seized truck as also A.K. Sinha, Customs House Agent made under Section 108 of the Customs Act, 1962 were admissible and it had been found that although the appellant was stationed at Kolkata, his Manager, Ishwar Chand Goel was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner while referring to the two persons namely, Ramesh Chandra and Motilal both of Motihari states that they were local persons associated with the National Cooperative Consumer Federation who claimed some knowledge in the matter but were not technical expert. It would be relevant to quote Section 24 of the Antiquities and Art Treasures Act, 1972 which reads as follows : "24. Power to determine whether or not an article, etc., is antiquity or art treasure.- If any question arises whether any article, object or thing or manuscript, record or other document is or is not an antiquity or is or is not an art treasure for the purposes of this Act, it shall be referred to the Director General, Archaeological Survey of India, or to an officer not below the rank of a Director in the Archaeological Survey of India authorized by the Director General, Archaeological Survey of India and the decision of the Director General, Archaeological Survey of India or such officer, as the case may be, on such question shall be final." From perusal of the records, we do not find any reference been made to the Director General, Archaeological Survey of India in terms of section 24 of the Antiquit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence reply showed that the appellant was in touch with them. The Commissioner, Patna Division mentioned about the involvement of the appellant in other cases in the past and that the appellant had shielded Akthar Ali who had been found involved in cases of fake export. In the opinion of the Commissioner, Customs these facts confirmed that these illegal activities were committed in the garb of transport business through various branches of Ms. Prakash Transport Company and that the appellant was the master mind of the illegalities. The Appellate Tribunal at Kolkata while dealing with the case of the appellant in paragraph 11 of its order stated that it was the appellant who was the owner/partner of Prakash Transport Company and responsible for all activities of the firm. It was further stated that inspite of knowing about the past involvements of Ishwar Chand Goel yet he had been appointed by the appellant on the post of Manager at Raxaul. These facts, in the opinion of the Appellate Tribunal, showed that the entire smuggling activities were committed on the directions of the appellant. From a perusal of the materials that was laid before the Commissioner, Patna and the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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