9911796707
TMI Blog2019 (11) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... t the opportunity to cross-examine the driver and that the show cause notice issued to him did not mention about the consequences on his failure to submit the defence reply - From a reading of the statement of the driver of the truck, it does not transpire that any allegation either direct or indirect, had been made against the appellant. It is also not pointed out by learned counsel for the appellant as to what prejudice has been caused to the appellant on denial of opportunity to cross examine the said driver. Another allegation that the show cause notice issued to the appellant did not contain the consequences in case, the defence reply did not find favour with the authorities - HELD THAT:- Since the show cause notice was issued under Section 124 of the Customs Act, 1962, the statute itself takes care of the consequences of rejection. From a perusal of the materials that was laid before the Commissioner, Patna and the Appellate Tribunal at Kolkata for their opinion, it would transpire that there is no material whatsoever against the appellant in so far as the seizure of the truck on 28.08.2001 and the undeclared goods, is concerned. The driver of the truck Sheikh Ahmed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner, Customs, Patna in so far as the appellant is concerned, was confirmed. The facts of the case in brief is that on receipt of information at about 17.00 hours on 28.08.2001 to the effect that a truck bearing registration no. NA-1KH-2715 loaded with antiques and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Superintendent (Prev.), L.C.S., Raxaul stated that the entire goods in his truck were loaded on 28.08.2001 from the Bhartiya Complex Godown of M/s. Prakash Transport, Raxaul on the directions of the Manager, Ishwar Chand Goel @ Pappu and were bound for Kathmandu, Nepal. He stated that the Customs Officers searched his truck in presence 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 act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot present himself before the authorities inspite of repeated summons and one of the summons sent to him returned with the postal remark that said named person has left the place for residence in Birganj . Thus, in the opinion of the customs authorities, the goods and the truck were liable for confiscation in as much as the declared goods were used to conceal the non-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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure their presence at the time of the search of the godown and incontrovertible facts of such recovery of idols attested by the independent witnesses and the driver and even the landlord of the said godown. In stead of disowning and denouncing the overt offence by his staff in the instant case, he has gone to the extent of not declaring their whereabouts and continued to support by full salary to his exmanager even after 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nager of the Company. This fact is clear from the following observations of the adjudicating authority that On query as to how he had appointed Mr. Ishwar Chand Goel to the post of Manager at Raxaul when he had been an accused in the Customs cases earlier, he stated that as far as he knew the offence was never proved. It clearly indicates that the smuggling activities of the Ishwar Chand was within the knowledge of Shri Naresh Kumar Goel and Ishwar Chand was acting on the direction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further contended that neither the noticee nor his representative got an opportunity to cross-examine the driver of the seized truck. It is the argument of learned counsel that the order of the Commissioner, Customs, Patna as also the Appellate Tribunal, in so far as the appellant was concerned is based on no evidence. It is submitted that the M/s. Prakash Transport Company, is a partnership firm of which, the appellant herein was one of the partners. It is contended that the other partner of the said company namely, Rajesh Goel who resides at Delhi, was not 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 sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicate him on the charge. On the other hand, in his reply, the Manager Ishwar Chand Goel @ Pappu has stated that all the transport goods were loaded on the said truck in presence of A.K. Sinha, the Customs House Agent. He has further categorically stated that he has neither claimed the ownership nor has any interest in the seized idols and thus has no concern with the confiscation proceeding. In so far as the valuation of the antique idols is concerned, the Commissioner Customs, Patna at paragraph no. 4 of his order has opined that they may fetch up to ₹ 1.5 crores in international market. The learned Commissioner 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 thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 124 of the Customs Act, 1962, the statute itself takes care of the consequences of rejection. We now turn ourselves to the substantial question of law raised. We have examined the reasons assigned by the Commissioner, Customs, Patna as also by the Appellate Tribunal at Kolkata to uphold the guilt of the appellant. We have quoted the relevant paragraphs of the orders passed by each of the two authorities. The only material available against the appellant as per the order of the Commissioner, Customs, Patna is, that the staff of the appellant was found deliberately absent at the time of search of the godown; that the appellant did not declare their whereabouts; and that the common drafting of defence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of ₹ 10 lacs under Section 114 of the Customs Act 1962. The other lacuna in the proceeding is that while holding the appellant guilty on grounds that he was overall in-charge of the partnership firm, the respondents did not choose to proceed against the other partner of the transport company namely, Rajesh Goel who is said to reside at A/23 Model Town, Delhi. In view of the facts stated herein above and taking into consideration the records of the case as also the submissions of the parties, we come to the conclusion that the instant is a case of no evidence, so far as the appellant herein is concerned. With respect to the discussions made by the Commissioner, Customs, Patna and the Appellate Tribunal at Kolkata in the impugned order(s) is concerned, it stands long settled that suspicion, howsoever grave, cannot be a basis for imposing penalty and the same could not have been done in absence of any legal and admissible evidence to confirm the guilt of the appellant. For the reasons and discussions above, we hereby set aside the order no. A-465-467/Kol/2004 dated 06.07.2004 passed in appeals CDM-28-30 and 45/03 passed by the Customs Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
