1988 (1) TMI 211 - AT - Customs

Tribunal upholds Rs. 1,00,000 penalty based on evidence. Appeal rejected, orders affirmed.

The Tribunal upheld the penalty of Rs. 1,00,000/- imposed on the appellant based on circumstantial evidence linking the appellant to the seized car and ... Adjudication distinct than Prosecution Issues Involved:1. Nexus between the appellant and the Ambassador car or the silver seized.2. Reliability and consistency of the driver's statements.3. Impact of the appellant and driver's discharge by the Criminal Court on the penalty.4. Evidence of attempted export of silver.5. Applicability of principles from prior judgments and legal precedents.Issue-wise Detailed Analysis:1. Nexus between the appellant and the Ambassador car or the silver seized:The Tribunal considered whether there was a direct connection between the appellant and the car or silver. Despite the lack of direct evidence, the Tribunal noted several circumstantial pieces of evidence: the car key was with the appellant, the appellant was seen with the driver just before the seizure, the appellant disappeared immediately after the customs officers arrived, and the appellant gave inconsistent statements about his whereabouts. These cumulative circumstances were deemed sufficient to establish a nexus between the appellant and the car and silver.2. Reliability and consistency of the driver's statements:The driver's statements were scrutinized for consistency and reliability. Initially, the driver implicated the appellant by stating that the appellant gave him the car key and instructed him to take the car to the garage. The driver later retracted his statement, which the Tribunal attributed to legal advice rather than voluntary retraction. The Tribunal also noted that the appellant did not seek cross-examination of the driver, which weakened the appellant's position. The Tribunal found the driver's initial statement credible, supported by the appellant's own contradictory statements and the family members' confirmation.3. Impact of the appellant and driver's discharge by the Criminal Court on the penalty:The Tribunal addressed the appellant's argument that the penalty should be set aside due to their discharge by the Criminal Court. It was clarified that adjudication proceedings and criminal proceedings are independent, and findings in one do not bind the other. The Tribunal cited the Bombay High Court's decision in Maniklal Pokhraj Jain's case, which established that acquittal in criminal proceedings does not preclude customs authorities from exercising their statutory powers under the Customs Act. The Tribunal emphasized that the adjudicating authority is guided by principles of natural justice and not strictly by the provisions of the Criminal Procedure Code or Evidence Act.4. Evidence of attempted export of silver:The Tribunal considered whether there was sufficient evidence to establish attempted export of the silver. The silver was found concealed in gunny bags within the car, parked within two kilometers from the coast, suggesting an intention to export. The Tribunal noted that if the customs officers had not intercepted the car, the silver would likely have been transported for export. Even if attempted export was not conclusively proven, the contravention of Chapter IVB of the Customs Act justified the confiscation of the silver.5. Applicability of principles from prior judgments and legal precedents:The Tribunal referenced several legal precedents to support its findings. It cited the Supreme Court's observation in Collector of Customs v. D. Bhoormull, emphasizing that smuggling involves secrecy, and the burden of proof can shift to the accused under Section 106 of the Evidence Act. The Tribunal also distinguished the present case from Bhanabhai Khalpabhai Patel's case, noting differences in facts and evidence. The Tribunal upheld the principle that adjudicating authorities are the sole judges of facts and sufficiency of evidence in domestic inquiries.Conclusion:The Tribunal concluded that the penalty of Rs. 1,00,000/- imposed on the appellant was justified based on the cumulative circumstantial evidence linking the appellant to the car and silver, the unreliability of the driver's retraction, and the independent nature of adjudication proceedings from criminal proceedings. The appeal was rejected, affirming the orders passed by the authorities below.