9911796707
TMI Blog2005 (7) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with prohibited silver and were liable to imposition of penalty u/s 112 of the said Act. In such a situation insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentative JUDGMENT R.K. Abichandani, President 1. These five appeals are directed against the order of the Commissioner of Central Excise, Kanpur made on 4-8-1999 by which the Commissioner ordered confiscation of 79 silver ingots weighing 2640.277 Kgs. valued at Rs. 1,75,60,169/- which were recovered and seized from the premises of Doodh Ki Dairy , Poni Road, Jhandey-Wala Chauraha, Bramh Nagar, Shukla Ganj, Unnao under Section 111(d) of the Customs Act, and confiscating 25 silver slabs weighing 373.365 Kgs. valued at Rs. 24,82,877.20 recovered and seized from the Maruti Van No. MP/09 H/2648, 25 silver slabs weighing 374.5 Kgs. valued at Rs. 24,90,425/- recovered and seized from Maruti Gypsy No. UP/78 F/5344 and 14 silver slabs and one silver thakia (lump) recovered and seized from the melting unit of M/s. Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur weighing 223.230 Kgs. and valued at Rs. 14,77,829.50 paise, under Section 111(d) read with Section 120 of the said Act. The Commissioner also confiscated the cast/mould (Sancha) used for melting/cashing silver slabs, etc. seized from the refinery unit of M/s. Ram Avatar Naresh Kumar, under Sections 118 and 119 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the smuggled contraband silver ingots of foreign origin were liable to confiscation under the said Act, seized the same under Section 110 thereof under the panchnama dated 18-12-1992. The Maruti van was also seized under a panchnama. 2.1 On the basis of the clues given by Ram Kishore Mishra during the enquiry, and his statement taken on 18-12-92, a team of officers was deputed to further search of tabela - buffalo shed/doodh-ki-dairy of Ashish Kumar Chaurasia alias Pappu doodhwala, Poney Road, Jhandey Wala Chaurah, Bramh Nagar, Shukla Ganj, Unnao. The officers visited the said place on 18-12-92 and the search warrant was executed upon Om Prakash, S/o Laxman Prasad, who was the employee of the 'doodh-ki-dairy', in the presence of two independent witnesses as Ashish Kumar Chaurasia was not present at that time. Om Prakash, disclosed in the presence of two independent witnesses, that Ashish Kumar Chaurasia (Appeal No. C/376/99) regularly visited the dairy along with his labourers and concealed something in the ground which he sometimes took out and carried in his car. Om Prakash showed that spot in the premises of the dairy where Ashish Kumar Chaurasia alias Pappu had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent witnesses. During the course of search, it was found that melting furnace, melting crucible pot (Balti), one die/mould (sancha) and 14 silver bricks were found lying in a hot condition. The furnace and 14 silver slabs were cooled down by pouring water on them. A crucible/melting pot was taken out from the furnace and one round shaped silver (thakia) was taken out. The search of the said premises resulted in recovery of 14 silver slabs, one silver 'thakia' and one melting crucible pot, one die/mould (sancha) and two gunny bags used for packing of foreign marked silver bricks. A detailed inventory was prepared at the spot in the presence of two independent witnesses. The recovered goods were seized and on being assayed by the approved assayer were found to be of the purity of .999, weighing 222.230 Kgs. and of the value of Rs. 14,77,829/-. These were also seized under Section 110 of the said Act the panchnama drawn on 18-12-1992. 2.3 On the same day i.e. 18-12-1992, another vehicle, Maruti Gypsy bearing registration No. UP-78F/5344 carrying contraband silver bricks was intercepted at 4.30 PM near Lal Kuan Chungi, Naka, GT Road flyover near Ghaziabad, by the officers of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded on 3-1-93 while in judicial custody under Section 108 of the said Act. From the statements of Ram Avatar Singhal, Ram Kishore Mishra and Om Prakash, it transpired that doodh-ki-dairy was owned by Ashish Kumar Chaurasia and that he used to bring foreign marked contraband silver and used to give the same to Ram Avatar Singhal for getting it melted and being sold, and he used to conceal the contraband silver under the ground in his dairy premises. It was also stated that no part of the dairy was given on rent for the last 12 years and that the dairy was solely owned by Ashish Kumar Chaurasia. The Commissioner of Central Excise, Kanpur, issued a detailed show cause notice with accompanying documents on which reliance was sought to be placed, alleging that the persons named above including the appellants were liable to penal action under Section 112, and that the seized goods were liable to be confiscated and penalty was liable to be imposed on the persons named therein including these appellants, under the provisions of the said Act. The show cause notice was issued on 8-6-1993. 2.5 The service of the show cause notice issued under Section 124 of the said Act was ensured by send ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, he did not do any refinery work as alleged against him in the show cause notice and in the statements recorded under Section 108 and referred to therein. 2.8 Ram Kishore Mishra (Appeal No. C/381/99) in his reply dated 17-12-1993 alleged that the show cause notice was based on his statement and the statement of the driver, Ram Bilas Mandal which were obtained under threat and coercion, that he was no where near the place of the Maruti van from where 25 silver bricks were seized, and that he was neither the owner of the silver bricks seized from the Maruti van nor in any way concerned with them. According to him, he was forced to write a statement implicating the name of Ram Avatar Singhal and that the statements were retracted jointly with Ram Avatar Singhal and Ram Bilas Mandal on 21-12-1993 when they were produced before the Chief Judicial Magistrate. It was contended that the retracted statements had no evidentiary value because they were not corroborated by any independent evidence and that it is a well settled law that confession of co-accused has no evidentiary value unless the facts are otherwise borne out by independent evidence. 2.9 Ram Bilas Mandal (driver of Maruti van ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and was not required to check whether the goods were of Indian or foreign origin. According to him, he was forced to sign the document in the office, the contents of which were not explained to him. He contended that he was not a driver of Ram Avatar Singhal and he was employed by some other person and that he did not load the silver in the Maruti van. 2.13 Dilip Kumar Singhal (Appeal No. C/31/2000) in his defence reply stated that he was not concerned with 79 silver bricks seized from the dairy of Pappu doodhwala or the silver bricks seized from the Maruti van and Maruti Gypsy. As regards the silver slab seized from the melting/refinery unit, he stated that he was only a sleeping partner, and was not involved in the conduct of the business of the firm. Acccording to him, Ram Avatar Singhal (who was his uncle and partner) would not have done anything wrong. He stated that he did not wake up Ram Kumar Kashyap nor helped him in loading of silver in the Maruti Gypsy and that the statement of Ram Kumar Kashyap to this effect appeared to have been recorded under duress. According to him, there was no evidence linking him with the seized silver and the proceedings were required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in silver bricks and that no documents evidencing legal importation or possession were submitted and, therefore, the onus under Section 123 of the said Act was not discharged making the said 25 silver bricks liable to confiscation under Section 111(d) read with Section 120 of the said Act. As regards 14 silver bricks and one silver thakia valued at Rs. 14,77,829.50 recovered from the melting/refinery unit of M/s. Ram Avatar Naresh Kumar, it was held that since the seized silver was found to be of the purity of .999, it was evident that the recovered silver slabs and thakia (lump) were made out of foreign marked silver bricks. The learned Commissioner has disbelieved the version that silver ornaments were supplied by Narendra Kumar of Rohtak which were converted into silver bricks for subsequent sale, holding that it was only an after-thought to shift the ownership of the seized silver without any support of evidence. It was observed that that there was no reason why any person of Rohtak would supply such a large quantity of silver ornaments to a person in Kanpur for melting, recasting and subsequent sale at Delhi which was very close to Rohtak. Moreover, neither any claim was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chaturvedi and Simon which was done by Ashish Kumar Chaurasia also revealed the involvement of Ashish Kumar Chaurasia as the main person. The learned Commissioner held that Ashish Kumar Chaurasia had requested for another date for personal hearing after cross-examining these two officers so that his advocate could also appear and that various dates for personal hearing were given after this, but neither Shri Chaurasia nor his advocate turned up . As regards the other noticees including the appellants, it was held that they subsequently stated that their statements were taken under duress and coercion. However, their statements were taken thrice on different dates and at different places and once under judicial custody in jail, on 18-12-1992, 19-12-1992, 20-12-92 and 3-1-1993 and the question of coercion or duress could not be believed and, that the retractions would appear to be an after thought. Moreover, there was consistency in the statements initially given by different persons. As regards Ram Avatar Singhal, the learned Commissioner held that he was the owner of the refinery of M/s. Ram Avatar Naresh Kumar engaged in the melting and reshaping of foreign marked silver at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at thought the appellant, Ashish Kumar Chaurasia had requested for an opportunity of cross-examination of the witnesses whose statements had been recorded under Section 108 as well as of the officers, opportunity was given only for cross-examining two officers and the rest of the witnesses including panch witnesses were not offered, resulting in violation of the principles of natural justice. He submitted that there was no evidence to show the involvement of the said appellant and there was no independent corroboration to implicate the appellant. It was argued that no penalty could have been imposed under Section 112 of the said Act as the appellant was not concerned in any of the activities mentioned in the impugned order in respect of the seized goods. 5.1 The learned counsel placed reliance on the following decisions in support of his contentions : (a) The decision of the Supreme Court in Union of India v. G.T.C. Industries reported in 2003 (153) E.L.T. 244 (S.C.) was cited for the proposition that finding could not be recorded by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to meet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries v. Collector of Central Excise, Cochin reported in 2002 (146) E.L.T. 248 (S.C.) was cited for the proposition that no reliance can be placed on the so called oral statement of the raw material supplier as he was not subjected to examination and cross-examination during adjudication. The Supreme Court observed in para 9 of the judgment that if the Collector can accept a statement allegedly made by a partner of the Universal Agencies which was not confirmed by his oral evidence in the inquiry and not subjected to cross-examination, it failed to understand how he could reject the letter signed by the very same person where he had given a diametrically opposed statement. (f) The decision of the Tribunal in Jaswinder Singh v. Collector of Customs reported in 1996 (83) E.L.T. 175 was cited for the proposition that statement of co-noticee or co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activity. It was held that the findings of non-appearance in response to summons cannot be a factor or criteria in determining the guilty conduct of the appellant. (g) The decision of the Supreme Court in Arya Abushan Bhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t places one at Kanpur and the other at Ghaziabad near Delhi on the same date i.e. on 18-12-1992 by different officers. Statements initially recorded, in the presence of different witnesses, of the drivers and the persons who accompanied these vehicles clearly involved Ashish Kumar Chaurasia and Ram Avatar Singhal as persons directly concerned with the contraband silver which was being transported in these vehicles for being sent to Delhi. He submitted that having regard to the nature of those statements, recorded at different places on the same date by different officers clearly implicating these persons and the other appellants, there was absolutely no scope of those statements being recorded under coercion or their statement being involuntary statements. He also submitted that the statements made before the customs officers during the course of the enquiry were relevant even in any proceedings other than the proceedings before any court, in view of the provisions of Section 138B(2) and, therefore, the learned Commissioner rightly relied upon the statements. He submitted that the statements of the appellants implicating themselves and each other and also the appellant Ashish Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by Ashish Kumar Chaurasia. He contended that there was ample evidence on record to show the involvement of all the appellants and the conclusions reached by the learned Commissioner were, therefore, fully justified. He also submitted that Ram Avatar Singhal had not taken the premises on rent and the story put forth by Ashish Kumar Chaurasia was not reliable, since no rent note or any other document showing tenancy was brought on record. Moreover, despite the fact that his employee, Om Prakash had shown the spot where the silver blocks were concealed in the portion of the dairy premises, there was no effort made to show that the portion of the ground from which the silver recovered was not in the possession of Ashish Kumar Chaurasia. He also submitted that the appellant Ashish Kumar Chaurasia who was seeking cross-examination of the witnesses had not remained present on several occasions on the dates fixed for hearing and as noted by the learned Commissioner, fourteen opportunities of personal hearing were given during the period 5-2-94 to 16-11-1998 and the desired persons were also called for cross-examination. But, adjournments were sought on one or the other grounds and irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in clear and unmistakable terms stated that whereas a proceedee would be entitled to inspect the relevant documents, they would not be entitled to cross-examine any witness. (e) The decision of the Tribunal in Popular Carpet Industries v. Commissioner of Customs (P), Mumbai reported in 1996 (84) E.L.T. 244 was cited for the proposition that where a co-notices did not agree to be cross-examined, he could not be compelled to come as a witness for cross-examination. (f) The decision of the Tribunal in Mayamahal Industries v. Collector of Central Excise, Meerut reported in 1995 (80) E.L.T. 118 was cited for the proposition that it would not be proper to put the co-notices in a position where he might have to incriminate himself by giving evidence. (g) The decision of this Tribunal in Fortune Impex v. Commissioner of Customs, Calcutta reported in 2001 (138) E.L.T. 556 (Kol.) was cited for the proposition that it is not required that in each and every case cross-examination should necessarily be allowed. 7. We first take up the contention that there was denial of principles of natural justice by not offering the witnesses for cross-examination by the appellant Ashish Kumar Chaurasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanungo Co. was followed by the Calcutta High Court in Tapan Kumar Biswas v. Union of India (supra) in paragraph 17 of the judgment and it was held that in a proceeding under the Customs Act the proceedees are not entitled to cross-examine the witnesses. The decision in Ashutosh Ghosh and Another v. Union of India and Others reported in 1977 Criminal Law Journal N.O.C. 67, was also relied upon and it was observed in paragraph 20 of the judgment that the Supreme Court in Ashutosh Ghosh's case has categorically held that a proceedee is not entitled to cross-examine the witnesses. The decision of the Division Bench of the Calcutta High Court in Kishan Lal case (supra) was also referred in paragraph 18 of the judgment and it was held to be laying down the proposition that cross-examination of the witnesses (in the matter under the Sea Customs Act) was not comprehended. Referring to all these decisions, the Court held, that a proceedee was not entitled to cross-examination of any witnesses under Section 124 of the said Act which lays down the extent of applicability of the principles of natural justice and under which a proceedee was not entitled to cross-examine any witnesses (para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Trivedi was a lawyer by profession and he would have not given any statement under pressure on 18-12-1992. This subsequent retraction by stating that he only took a lift because of curfew is a blatant effort to riggle out of the reality that reflected in the statements of the driver, Ram Kumar Kashyap and other witnesses. The confessional statements of the appellants who made them were binding on them. In this context, we may refer to the decision of the Supreme Court in Surjeet Singh v. Union of India reported in 1997 (89) E.L.T. 646 (S.C.) = AIR 1997 SC 2560 where the petitioner sought cross-examination of the witnesses who said that the recovery was made from the premises of the petitioner, held that the confession made by the petitioner was binding on him and, therefore, failure to give him the opportunity to cross-examine the witnesses was not violative of principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held : 3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement could be accepted even though the exculpatory part of the statement of the accused was rejected. Where the inculpatory part of the statement of the accused is distinct and severable from the exculpatory part, if the court finds the exculpatory part to be inherently improbable, the other part of the statement which implicates the accused and which the court sees no reason to disbelieve, could be accepted. 9. As noted above, all the noticees including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employee of the appellant Ashish Kumar Chaurasia and the statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. 10. The appellant Ram Avatar Singhal was in the business of melting silver and was a jeweller. He, in his statement recorded on 19-12-1992, has admitted that he was a partner along with his nephew, Dilip Kumar Singhal in the firm of M/s. Ram Avatar Naresh Kumar. He stated that Ashish Kumar Chaurasia was a friend of his nephew and that he knew him well since the last 10 years. He also stated that Ashish Kumar Chaurasia was dealing in milk and having a shop. He stated that two months prior to this statement, Ashish Kumar Chaurasia alias pappu, doodhwala had asked him whether he (Ram Avatar Singhal) would melt silver of foreign make that he would bring. Ram Avatar Singhal agreed to do so. Thereafter the appellant Ashish Kumar Chaurasia, as agreed, used to bring silver ingots of foreign make for getting them melted in his refinery for which Ram Avatar Singhal was paid at the rate of Rs. 50/- per kg. He then admitted that after melting such ingots, he used to send them for sale in his vehicles through his driver, Ram Bilas Mandal and Jagdish Shanker Trivedi alias Jijaji of his friend (Ram Kishore Mishra). He then admitted that he had melted 58 to 60 foreign marked contraband si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Delhi. He also told the officers that Ram Avatar Singhal had melted the silver ingots of foreign make and converted them into silver slabs in his refinery, address of which was given. He gave the information that foreign marked silver ingots were concealed in the ground of the premises of the doodh-ki-dairy owned by Ashish Kumar Chaurasia, alias pappu doodhwala. It is on the basis of this information, the customs officers proceeded to the said dairy farm from where they recovered 79 ingots of silver of foreign make under a panchnama. The panchnama and the statements of panchas vividly described how Om Prakash, the employee of Ashish Kumar Chaurasia pointed out the spot in the dairy farm of Ashish Kumar Chaurasia which was dug up and from where 79 ingots of silver of foreign make were recovered. They had also recorded the statement of Om Prakash that Ashish Kumar Chaurasia had concealed something in that portion of the dairy. It is clear that at that time, there was nothing to indicate that the said portion was let out on rent to Ram Avatar Singhal. Ram Avatar Singhal had denied of having been let out any portion of the dairy farm. The appellant Ashish Kumar Chaurasia has tried t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Trivedi alias Jijaji, and Ram Kishore Mishra. He has stated that Ram Kishore Mishra was a friend of Ram Avatar Singhal. Even in the statement recorded on 3-1-1993 Ram Bilas Mandal has admitted that he was driving the vehicle when it was intercepted and that contraband Silver was recovered from it. He had stated that he was paid salary by Ram Avatar Singhal and the payment for going to Delhi was separately given by Ashish Kumar Chaurasia, alias Pappu Doodhwala. 12. It is clear to us from the statements of Ram Avatar Singhal, Ram Kishore Mishra, Ram Bilas Mandal and Ram Kumar Kashyap that the appellant Ashish Kumar Chaurasia, alias Pappu doodhwala was involved in concealing the silver ingots of foreign origin in his dairy premises and he used to give such ingots to Ram Avatar Singhal for getting them melted and sold for which he used to pay the agreed amount to Ram Avatar Singhal. The appellant Ram Avatar Singhal used to send the converted contraband silver to Delhi in the vehicles in which concealed cavities were made for the safe transport of the contraband goods. The appellant Ram Avatar Singhal used to depute Jagdish Shanker Trivedi, alias 'Jijaji' who was a lawyer alon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
