9911796707
TMI Blog2022 (9) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Upon arrival, they were intercepted by the customs authorities just as they were being approached by three individuals, by name, Jayabal Nadesan, Nagoor Gani and Mohammed Rabi (hereinafter referred to as 'Receivers'). 3. The interception was at the stage of their handing over of two parcels to the Receivers. When the persons were apprehended and parcels opened they found that they contained electrical appliances, specifically, tile polishing machines in which, gold bits had been concealed. 4. The above transaction was viewed as an improperly imported consignment and in terms of Section 111 of the Customs Act, 1962 (in short 'Act'), the same was confiscated. The specific provision under which the confiscation was effected is Section 111(e) which refers to any dutiable or prohibited goods, concealed in any manner, in any conveyance. With the confiscation of the goods, penalty under Section 112 came to be imposed upon the parties concerned. 5. The other players in the sequence of events are the two individuals, who are stated to have handed over the consignment to the Carriers at Singapore, who are, by name, Jallaludin and Kamaaludeen (hereinafter referred to as 'Consignors'), s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been rendered in the context of principles of natural justice, specifically where opportunity of cross examination has been denied. 1. State of Kerala Vs. K.T.Shaduli Yusuff Etc. [1977 AIR 1627] 2. Customs Vs. Mohammad Bagour [2012 (275) ELT 513 (DEL)] 3. Ayaaubkhan Noorkhan Pathan Vs. The State of Maharastra & Ors. [Supreme Court of India Civil Appeal No.7728 of 2012] 4. Thilagarathinam Match Works and Ors. Vs. The Commissioner of Central Excise, Tirunelveli Commissionerate and Ors. [2013 (295) ELT 195 (Mad.)] 5. Shahid Balwa Vs. The Directorate of Enforcement [Delhi High Court LPA Nos.79 & 80 of 2013] 6. Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II [2015 (324) ELT 641 (SC)] 7. Mulchand M.Zaveri Vs. Union of India [2016 (339) ELT 364 (Guj.)] 8. Payangadi Moidu Mohammed Ali Vs. The Commissioner of Appeals [Madras High Court W.A.No.1569 of 2016] 9. Visal Lubetech Corporation Vs. The Additional Commissioner of Customs [Madras High Court W.A.Nos.130 & 131 of 2017] 10. Skyrise Overseas Pvt. Ltd. and another Vs. The Commissioner of Customs (Port) & Another [Calcutta High Court W.P.No.11792 of 2017] 11. Rajkumar Gowthaman Vs. Joint Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that the proceedings are not vitiated, they would also ensure no appearance for the purpose of cross examination itself, thus frustrating the process. In all and using this ploy, the ultimate result would be to frustrate the proceedings, which, he would urge must not be entertained. 15. In this context, he would rely on the following judgments: 1. Naresh J.Sukhawani Vs. Union of India [1996 SCC (Cri) 76] 2.Surjeet Singh Chhabra Vs. Union of India and Others [1997 SCC (Cri) 272] 3.Ashish Kumar Chaurasia Vs. Commissioner, CESTAT [(2015) 325 ELT 250] 4.S.Rajendran Vs. Joint Commissioner of Customs (Preventive) and Others [2019 SCC Online Mad 30508] 16. The aforesaid judgements have all been rendered in the context of similar matters where penalties were imposed for wrongful importation. Courts have consistently, upon consideration of similar factual matrix as in the present case, concluded that the overall facts and circumstances must be looked at and a general preponderance of possibilities is what must govern decision making in such cases. 17. Specific requests for cross examination were made in those matters as well and there had been no opportunities granted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, had been concealed in side small. Tile Polishing machine, given to me by Sri. Jalal, at Kaula Lumpur, to be delivered to a person and his friends at the airport, later identified as Sri. Jayapal Nadsen, Sri Mohamed Rafi, and Sri. Nagoor Gani. I came to know that gold is concealed in the said machine only after the same was opened by the officers.' 22. The statement of Mohammed Rabi, the other carrier has also been recorded then and there, on 05.03.2014 itself, placed at page 11 of document compilation dated 28.07.2022. He too confirms inter alia, the facts as stated by the Carriers. So too in the case of Jayabal Nadesan, vide statement dated 05.03.2014, placed at page No.15 of document compilation dated 28.07.2022. 23. Thus, all the Receivers have concurred with the statement of the Carriers to the effect that the incriminating package has been handed over to Niasudeen Anwar by Jallaludeen. No doubt, the statements have been retracted on a latter date. However, in my considered view, the subsequent retraction must be seen in the context of the facts in entirety, and as merely a device to get over the honest confessions made at the first instance. 24. That apart, it is also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner. 28.In that case as well, the confession of the party, though retracted had been relied upon by the parties, and this confession is what has been confirmed by the Hon'ble Supreme Court as being reliable evidence. 29. In the case of Ashish Kumar Chaurasia (supra) a similar argument had been taken by the petitioner, who had complained about the lack of opportunity for cross examination. The Division Bench of the Allahabad High Court confirms the findings of the CESTAT on facts and circumstances very similar to the present case. Useful reference may be made to paragraph 9 of the Tribunal's or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, "various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up. It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justices. 30. The above finding has found favour with the Division Bench and at paragraph 12, they state,: 12. From the findings of fact recorded by the Tribunal which is the last fact finding authority, it is evident that ample opportunity was afforded to the appellant during the course of adjudication proceeding. The appellant was involved in smuggling silver. Seventy nine silver bricks of for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the same. 33. Moreover, and as rightly pointed out by the respondents, the Customs Act envisages and adopts different standards of enquiry and proof when it comes to matters involving assessment and levy of penalty on the one hand (such as the present), and prosecution, on the other. 34. Prosecution, under Section 138A, falls under Chapter XVI, entitled 'Presumption of culpable mental state'. The language used therein is categoric to the effect that the Department must, beyond any reasonable doubt, establish guilt of the accused. However, such language is conspicuously absent when seen on a combined reading of Sections 111 and 112 of the Act. 35. Thus, and as supported by the judgments I have noticed and discussed above, it would suffice, in matters of the present nature that the Revenue establish preponderance of possibilities and the Court must, while taking a decision in such cases, adopt a practical, holistic and pragmatic approach that would not place an unreasonable and artificial strain upon the Revenue in matters of burden of proof. 36. Furthermore, the petitioners have exhausted revisional remedies where the findings of fact clearly set out. Thus, in light of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
