TaxTMI 
TaxTMI 
1988 (1) TMI 211
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....n the presence of Panchas, certain gunny bags containing silver totally valued at Rs. 11,23,320.00 were found in the dicky and front seat of the car. The person who opened the car gave his name as Baijnath Sahadev Navik and claimed to be the driver of the said car. The car as well as the silver were seized in the reasonable belief that both of them are liable to confiscation under the Customs Act. The statement of Shri Navik was recorded. Among other things, he stated that he was employed by the present appellant Shri Sultan Ali Abdulla Lallani and pointed out the residence of the appellant which was on the ground floor of Ashar Ali Manor near which the car was parked. The driver, further, told that he was employed three days earlier to the incident by the present appellant on a salary of Rs. 400/- per month. On the previous day of the incident at the instructions of the present appellant, he had taken the Fiat car bearing No. MRW 7408 to a garrage for repA.I.R.s and at that time the Ambassador car in question was parked in front of the appellant's house. He stated that the said car was parked in front of the appellant's house for the whole day. He, further, stated that the appella....
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....7.3.1980 the appellant among other things stated that he had not fixed the salary of the driver but have told that he would have given Rs. 250/- to Rs. 300/- and he had given him Rs. 100/- in advance. He admitted that the driver was Shri Baijnath Navik. 8. After completion of investigation, after issue of show cause notice and after consideration of the reply to the show cause notice and after affording personal hearing, the Additional Collector of Customs ordered absolute confiscation of the seized silver as well as the Ambassador car. He imposed a penalty of Rs. 1,00,000/- on the appellant and Rs. 10,000/- on the driver Shri Baijnath Navik. Feeling aggrieved by the order the appellant had preferred an appeal before the Board. The Board, however, rejected the appeal. Hence this appeal. 9. During the hearing of this appeal Shri M.M. Patel, the appellant's learned advocate, firstly contended that no evidence had been adduced to establish nexus between the appellant and the Ambassador car or the silver seized from the car. Secondly, he urged that even though three statements of the appellant were recorded all of them were exculpatory. Thirdly, he urged that the statement of the dri....
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....ilver found in the car Shri Senthivel submitted that the same could not have belonged to the driver. Shri Senthivel, further, submitted just at the time of driver opening the door of the car, the appellant was at the place but when the car and the silver were seized the appellant made his escape and he remained absent for a long time. His conduct clearly establishes his guilt. In this connection Shri Senthivel placed reliance on the decision of the Supreme Court reported in A.I.R. 1980 Supreme Court Page 593 = 1983 E.L.T. 1620 (S.C.) State of Maharashtra v. Natwarlal Damodardas Soni. It was, further, submitted by Shri Senthivel that the discharges of the appellant in a criminal prosecution has no relevance. The adjudicating proceeding and the criminal proceeding are two independent proceedings. The finding in one proceeding is not binding in another proceeding. In that connection Shri Senthivel placed reliance on the Division Bench Judgment of the Bombay High Court reported in 1986 (26) E.L.T. Page 689 (Bom.) Maniklal Pokhraj Jain v. Collector of Customs (Preventive), Bombay and Others. Shri Senthivel, further, submitted that it is permissible in law to consider the whole statement....
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.... in this appeal is whether the penalty of Rs. 1,00,000/- imposed on the appellant by the Additional Collector and confirmed by the Board requires to be interfered with. 13. It is true that there is no direct evidence to establish the nexus between the appellant and the Ambassador car as well as the silver seized from the Ambassador car. It is also true that the driver's statement is not consistent. It is also true that there was no direct evidence to establish that the Ambassador car from which the silver was seized either possessed, owned or controlled by the appellant. It is, further, true that the appellant and the driver were discharged by the Additional Chief Metropolitan Magistrate. The discharge order was confirmed by the High Court in the Criminal Revision Writ Petition filed by the State of Maharashtra. The question still remains as whether the above factors would be sufficient to set aside the penalty imposed on the appellant. 14. Insofar as the finding of the Criminal Court is concerned the law in this part of the country is well-settled. This very question came up for consideration before the Division Bench of the Bombay High Court in Maniklal Pokhraj Jain's case. For....
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.... the Customs Officers to perform their statutory functions and exercise their statutory power under the Act because of a failure of the prosecution started under Section 135 and the acquittal of the person concerned. By its very nature, the two proceedings are independent of each other. In a given case, evidence which may be available for the purposes of proceedings under Section 112 may not be available or even if it is available, it may be admissible in regular Court of Law in which the admissibility and relevance is determined with reference to the provisions of the Evidence Act. In a criminal prosecution, the accused need not open his mouth nor make any statement while in the proceedings for adjudication or confiscation before the Customs Department, the statement made by the person from whom the contraband article were seized can be looked into. The scheme of the Act, therefore, clearly indicated that the two proceedings have to be dealt with independently on each other on such material as is available and permissible in these proceedings". 15. The Division Bench also rejected the contention of the learned advocate for the appellant in that case that there was no material whi....
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.... none of the prosecution witnesses assorted before the Court as to the abscondence. But then, before the Adjudicating Authority there were the statements of the driver, the family members of the appellant as well as the appellant's himself. Shri Baijnath Navik who was admittedly employed as driver by the appellant has stated that the key of the Ambassador car was given by the appellant. He has, further, stated that the appellant and himself were together and the appellant told him to take the Ambassador car to the garrage and he would be back within two minutes. His statement that the appellant and himself were together is supported by the statement of the family members of the appellant who have stated that the appellant and the driver had together gone out. Secondly, the appellant in his statement recorded on 27.2.1980 stated that he was not at all present in Bombay on the date of the incident. His statement gave an impression that about 4 to 6 days prior to the date of incident he had left Bombay and before leaving he had temporarily employed Shri Baijnath Navik as driver to take his children to school and bring them back as one of his daughter was crippled. But then, in his sta....
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....o the appellant. It was given to him for the purpose of sale. 19. Even if we were to accept Shri Patel's contention that the evidence of the driver requires corroboration, the corroboration contemplated can be of circumstantial evidence and need not be direct evidence. There are tell-tale circumstances to implicate the appellant. The driver and the appellant were found together just before the customs officers seized the car as well as the silver. Immediately thereafter the appellant disappears from the scene. He reappears after delay of more than 2-1/2 months and apparently after knowing that the driver had retracted his earlier statement. The appellant himself gives two contradictory statements as to the date on which he left Bombay to Ajmer. He left Bombay even without the knowledge of the members of the family though according to his statement he was to be away for not less than 40 days. It is very unlikely that he would leave Bombay when his wife was not in good health and the daughter was crippled requiring assistance. The conduct of the appellant clearly indicates his connection with the Ambassador car and the contraband goods found therein. In the circumstances, we are una....