TaxTMI 
TaxTMI 
2011 (1) TMI 297
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....ll proof case against them. TABLE -A APPEALS FILED BY REVENUE AGAINST OFFICERS OF CUSTOMS Sl. No RESPONDENTS APPEAL NO. Appearance for Assessee Appearance for Revenue 1. Kamal Bajaj C-59/2007 Mr. Piyush Kumar Mr. Sumit Kumar 2. V.S. Teotia C-60/2008 -do- -do- 3. Parveen Teotia C-61/2008 -do- -do- 4. J.A. Khan C-62/2008 -do- -do- 5. Vinod Kumar [Kain] C-63/2008 -do- -do- 6. R.K. Dakolia C-64/2008 -do- -do- 7. A.K. Varshney C-65/2008 -do- -do- 8. D.S. Nanadal C-66/2008 -do- -do- 9. Neeraj Kumar C-67/2008 -do- -do- 10. Yashvir Singh C-68/2008 -do- -do- 11. Kamal Suman C-69/2008 -do- -do- 12. S.D. Rajpal C-70/2008 -do- -do- 13. S.A. Lamb C-71/2008 -do- -do- 14. V.K. Bharadwaj C-72/2008 -do- -do- 1.1 Following 5 (five) appeals appearing TABLE - 'B' below were also filed by Revenue being aggrieved by the order of adjudication dropping adjudication proceedings initiated against them on the allegation that they were organisers of smuggling activitie....
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....8 Mr. Shailendra Bharadwaj Mr. Sumit Kumar 30. Anudeep Singh C-12/2008 -do- -do- 31. Gopal Dokania C-13/2008 -do- -do- 32. Anupdeep Singh C-15/2008 -do- -do- 33. Nitesh Kumar Kedia C-16//2008 -do- -do- 34. Sanjeev Jain C-17/2008 -do- -do- 35. Arun Dokania C-18/2008 -do- -do- 1.4 Common impugned order was passed dealing with consequences of search and seizure operation made on 28-8-2000 at the IGI Air Port, New Delhi discovering certain goods illegally imported causing evasion of customs duty by wilful misdeclaration as to quantity and value thereof. Similar such imports made in past in 24 occasions prior to 28-8-2000 not resulting seizure of the goods on those occasions also became subject matter of adjudication by the impugned order. 1.4A The search and seizure operation of 28-8-2000 provided back ground for further investigation into various illegal imports made prior to that date resulting in loss of customs duty. Investigation revealed that illegal imports of offending goods were made by the passengers named in Col. 2 of Table - 1 to the impugned order on different da....
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....- 6,01,285/- 10-7-2000 Olga Kozireva 21496 1461755 8,94,594/- 8,94,594/- 17-7-2000 Nazira I. 32654 2220450 13,58,916/- 13,58,916/- 24-7-2000 Merkulova L. 25630 1742840 10,66,618/- 10,66,618/- 27-7-2000 Olga Kozireva Nazira 2467 5991 167742 407374 1,02,658/-2,49,313/- 1,02,658/-2,49,313/- 31-7-2000 Olga Kozireva 26194 1781219 10,90,106/- 10,90,106/- 1-8-2000 Olga Kozireva Nazira I. 5419 5638 368519 383411 2,25,534/-2,34,648/- 2,25,534/-2,34,648/- 4-8-2000 Olga Kozireva Nazira I. 4934 6040 335485 410744 2,05,317/-2,51,376/- 2,05,317/-2,51,376/- 11th/12th Aug. 2000 Olga Kozireva Nazira I. 22668 1541424 9.43,351/- 9,43,351/- 14-8-2000 Merkulova 18496 1257755 7,69,746/- 7,69,746/- 18-8-2000 Nazira I 6410 435880 2,66,759/- 2,66,759/- 21-8-2000 Merkulova L. 31425 2136878 13,07,769/- 13,07,769/- FOLLOWING IMPORT DOES NOT APPEAR IN TABLE - 1 ALTHOUGH APPEARS IN TABLE -14 AT PAGE 176 OF O-I-O 22-5-2000 Olga Nazira I and Shahlo A 18296 1244155 ....
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.... Rs. 75,000/- on each 3rd/4th July 2000 Mamoor Khan, Yashpal 14448 982491 6,01,285/- Rs. 1,50,000/- on each 10th July 2000 Mamoor Khan, RN Zutshi 21496 14,61,755/- 8,94,594/- Rs. 2,00,000/- on each 17-7-2000 Mamoor Khan, TRK Reddy 32654 2220450 13,58,916/- Rs. 3,00,000/- on each 24-7-2000 Dil Agha, Mamoor Khan, RN Zutshi, TRK Reddy, Anil Madan 25630 1742840 10,66,618/- Rs. 2,50,000/- on each 27-7-2000 Dil Agha, Mamoor Khan, VK Khurana 2467 5991 167742 407374 1,02,658/-2,49,313/- Rs. 75,000/- on each 31-7-2000 Dil Agha, Mamoor Khan, VK Khurana, Nazira I. 26194 1781219 10,90,106/- Rs. 2,50,000/- on each 1-8-2000 Dil Agha, Mamoor Khan, VK Khurana RN Zutshi, Nazira I 5419 5638 368519 383411 2,25,534/-2,34,648/- Rs. 1,00,000/- on each 4-8-2000 Dil Agha, Mamoor Khan, VK Khurna 4934 6040 335485 410744 2,05,317/-2,51,376/- Rs. 1,00,000/- on each 11th/12th Aug. 2000 Dil Agha, Mamoor Khan, Pradeep Rana 22668 1541424 9,43,351/- Rs. 2,00,000/- on each 14-8-2000 Dil Agha, Mamoor Khan, Olga Kozireva, Nazira I Pardeep R....
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....g restricted item falling under Customs Tariff Heading 5007.20 were not bona fide baggage and required import licence as per ITC (HS) Classification 1997-2002 and were illegally imported into India in violation of prohibitions/restrictions imposed thereon under para 5.6 of the Export Import Policy 1997-2002 read with section 3(2) and 3(3) and 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 read with section 14 of the Foreign Trade (Regulation) Rules, 1993 read with section 11 of the Customs Act, 1962, thereby rendering the said silk textiles liable to confiscation under section 111(d) of the Customs Act, 1962. (4) The part, of the seized silk textiles, of 35446 metres weighing 2011.7 kg and valued at Rs. 2410338 which was not mentioned in the passenger manifest of flight K2 545 by Kyrgyzstan Airlines was liable to confiscation under section 111(f) of the Customs Act, 1962. (5) The offending goods seized on 28-8-2000 were illegally imported into India by Ms. Olga Kozireva resorting to collusion, wilful mis-statement and suppression of facts in fraudulent attempt to cause evasion of Customs duty Rs. 30,88,407/- l....
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....0 days of the receipt or display on notice board of the show cause notice, to the Commissioner of Customs (General), New Customs House, New Delhi (the adjudicating authority) as to why penalty should not be imposed upon him under section 112(b) of the Customs Act, 1962. 2.5 Kyrgyzstan Airlines was called upon to show cause, within 30 days of the receipt or display on notice board of the show cause notice, to the Commissioner of Customs (General); New Customs House, New Delhi (the adjudicating authority) as to why : (a) Silk textiles, consisting of 64489 metres weighing 3660 kg of assessable value Rs. 4385266 on 10-4-2000, 22-5-2000 and 14-8-2000, the part of the silk textiles, consisting of 35998 metres and weighing 2043 kg and valued at Rs. 2447841, on 17-7-2000 and 21-8-2000 and the part, of the seized silk textiles, of 35446 metres weighing 2011.7 kg and valued at Rs. 2410338, on 28-8-2000, illegally imported into India without being mentioned in the passenger manifests of flight K2-545 should not be confiscated under section 111(f) of the Customs Act, 1962. (b) Penalty should not be imposed upon them under section 112(a) of the Customs Act, 1962. ....
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....s per ITC (HS) Classification 1997-2002 and were illegally imported into India on the dates mentioned in column A of that Table in violation of prohibitions/restrictions imposed thereon under para 5.6 of the Export Import Policy 1997-2002 read with section 3(2) and (3) and 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 read with section 14 of the Foreign Trade (Regulation) Rules, 1993 read with section II of the Customs Act, 1962, thereby rendering the said silk textiles liable to confiscation under section 111(d) of the Customs Act, 1962. (3) 3,660 kg of baggage consisting of 64489 meters of silk textiles of assessable value Rs. 4385266 imported on 10-4-2000, 25-5-2000 and 14-8-2000 and a part of the silk textiles, consisting of 35998 meters and weighing 2043 kg and valued at Rs. 244,7841, imported on 17-7-2000 and 21-8-2000, were illegally imported into India without being mentioned in the passenger manifest of flight K2-545 by Kyrgyzstan Airlines, were thereby rendered liable to confiscation under section 111(f) of the Customs Act, 1962. (4) The quantity of silk textiles mentioned in column B of Table 14 were illegally imported into India in fraudul....
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....on the dates mentioned in column A thereof which they knew and had reasons to believe were liable to confiscation under section 111 of the Customs Act, 1962, and thereby rendered themselves liable to penalty under section 112(b) of the Customs Act, 1962. 2.8The persons appearing in Table 14 depicted herein before were called upon to show cause as to why: (i) The quantity of silk textiles mentioned in column B of assessable value mentioned in column C of Table 14 to SCN which were illegally imported on the dates/flights mentioned in column A thereof should not be held liable to confiscation under section 111(d) and (1) of the Customs Act, 1962, as applicable. (ii) The amount of duty evaded as mentioned in column D on the dates mentioned in column A of Table 14 to SCN should not be demanded from her/them under the provisions of section 28(1) of the Customs Act, 1962 read with the proviso thereto, along with interest thereon under section 28 AB of the Customs Act, 1962. (iii) Penalty should not be imposed on her/them under section 112(a) and (b) or 114A of the Customs Act, 1962. 2.9 Person(s) mentioned in column F of Table 14 to SCN were called upon ....
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....d on the persons mentioned in column 2 of the said Table for aiding and abetting the acts of omission and commission of the passengers to make illegal imports on different dates by them as mentioned in column 2 in Table - 1 herein before depicted which rendered the goods of the quantity described below liable to confiscation. Table - 14 of the impugned order appearing at page 176 thereof is reproduced below for reference : TABLE - 14 (Ref: Page 176 of OIO) Date/Fit Silk Tex.-not decl. and not assd. In meters Value of silkTex.Not decl. and not assd. In Rs. Customs duty evaded Person who, jointly or severally, evaded duty and prohibition Person who abetted Persons concerned with dealing with the goods. A B C D E F G 17-12-98 KGA 2003 11338 771007 619659 Olga K, Nazira I and Shakista K Not know Not know 17-9-99 PK814 4546 309125 189185 Olga K Not know Not know 1-2-2000 KGA200 1 22272 1514474 926858 Shakista K Kamal Bajaj, Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mah....
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....ssenger adjudicated Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 1-7-00HY 429 8220 558946 342075 Olga K Mamoor Khan, Sanak, Sudhir Sharma Neeraj Kumar, Nazira Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh ¾-7-00 9Y 219 14448 982491 601285 Olga K Mamoor Khan, Sanak, Yashpal Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-7-00K2545 21496 1461755 894594 Olga K Mamoor Khan, Sanak, Vinod Kumar, RN Zutshi, VS Teotia, RK Dacoliya, AK Varshney DS Nandal Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-7-2000 K-2 545 32654 2220450 1358916 Nazira I Mamoor Khan, Sanak, TRK Reddy Kozireva# #not pax but at air'oport with flight Nitish Kedia, Anup Singh, Kh....
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....anjir Khan, Pradeep Rana *not passengers but a assessed Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, MahenderJain, Anudeep Singh 18-8-2000 PK-270 6410 435880 266759 Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, Olga K, Pradeep Rana, SA Lamb, VK Bhardwaj Nitish Kedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 21-8-2000 K-2 545 31425 2136878 1307759 Merkulova L Dil Agha, Mamoor Khan, Sanak Sadullah, Zanjir Khan, R.N. Zutshi, Olga K*, Nazira*, *not passenger but assessed. Nitish Kedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh Total 421245 28644640 17578322 (v) Penalties of Rs. 5,00,000/- (Rupees five lakhs) each were levied on Nitish Kedia (Notice No. 26), Anupdeep Singh (Noticee No. 27), Khem Singh (Noticee No. 28), Arun Dokania (Noticee No. 29), Go....
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.... - Olga K., Shakista K., Shahlo A., Nazira I., Merkulova L. and Others, as mentioned in the Notice, under the provisions of Section 28(1) read with proviso thereto alongwith interest thereon under Section 28AB of the Customs Act, 1962? (vi) Whether notice Nos. 4 to 25 (Departmental Officers) and other notices, as mentioned in the show cause notice, conspired and colluded with the above noticees and aided & abetted the acts of commission and omission allegedly committed by them? And whether they were knowingly concerned with carrying, removing, transporting, keeping, selling and otherwise dealing with the said imported goods which they knew and had reason to believe were liable to confiscation and whether they rendered themselves liable to penal action under the provisions of Section 112(a) and 112(b)? All the issues were answered in favour of Revenue and consequence under law flowed. Investigation and adjudication observations and findings 4. In the course of search and seizure made on 28-8-2000 and investigation made in respect of illicit imports made on different occasions prior to that date, Investigating officers found that various persons, concerns....
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....formed earlier to Customs vide our letter dated 27-12-2000, this matter has been investigated and services of staff responsible including that of Mr. Dusheev, Head of Manas Airport, has been suspended." (Emphasis supplied) 4.3 It was found in adjudication that the basis adopted by DRI in arriving at the actual weight of excess baggage brought by offender Passengers was well founded on the facts and figures of 28-8-2000 and application of such basis was made to the clearances made on different dates prior to 28-8-2000. The weight and value of smuggled goods determined by learned Adjudicating Authority remained uncontroverted. 4.4 Ld. Adjudicating authority thoroughly examined the statement recorded from one Dil Agha, who introduced himself to Mr. R.N. Zutshi, an officer of Customs who is an appellant in the present batch of appeals appearing in TABLE - "C to this order as Mamoor Khan's brother because Mamoor Khan left India on 22-7-2000 and from that date, Dil Agha was conducting smuggling operation. Dil Agha confirmed that he was present on 28-8-2000 at the Airport to take delivery of the offending goods brought by Ms. Olga and Gulia on that day. He contacted to a M....
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....the 24 dates as under:- (A) While making charge of illegal clearance of baggage on 24 dates prior to 28-8-2000 as Tabulated in Table 14 to SCN, DRI heavily relied upon the statement of Sri Zutshi, an Air Customs Officer, recorded on 17th Jan. 2001. In his statement of Sri Zutshi vividly described connivance and abetment of co-noticees including the Departmental Officers for clearance of offending goods on 24 dates prior to 28-8-2000. Statement of Sri Zutshi described how the Officers of Customs posted at International Airport were instrumental for clearance of offending goods accepted illegal gratification from offending passengers like Olga K., Nazira I., Shakishta K. & Shahlo A. etc. who were illegally importing offending goods i.e. silk fabrics. Although Sri Zutshi, retracted his statement dated 17th Jan., 2001 by a letter dated 19th Jan. 2001 stating the same to be not voluntary and was tendered under pressure and coercion of the investigating officers that was not established by him. The letter of retraction was addressed to the Commissioner of Customs (General)/ New Customs House, New Delhi instead of being sent to DRI. However, the letter of retraction w....
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....ner would simply say that he was taken to the Enforcement Directorate where he was compelled to give the statement and the same was also written as desired by them and he had to sign on account of threat he would be handcuffed. For the simple reason that the accused person expresses threat and coercion from the officers of Enforcement Directorate, unless this threat and coercion appears to be true, the Courts are not bound to accept that explanation offered by the accused." (Emphasis supplied) (D) Ld. Adjudicating Authority held that Sri Zutshi made vague insinuations like he was threatened that he would be implicated in fake case by the officers and that they would go to any extent to harm him were in the nature of after-thought plea. Ld. Adjudicating Authority relied on the decision in the case of Ratlam Wires Pvt. Ltd. v. CESTAT, New Delhi reported as 2004 (174) E.L.T. 154 (MP) to support his decision and plea of retraction was discarded. According to ld. Adjudicating Authority, in Roop Kala Export Corporation v. UOI reported as 2004 (165) E.L.T. 26 (Bom.), the Hon'ble Bombay High Court held that retraction on the basis of vague protest that statements were ....
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.... over a period of time and offered monetary consideration for helping him in clearance of contraband baggage and who were the other officers involved in negotiations and settlement of rates with Mamoor Khan came to light. It was established by DRI as mentioned in para 37 of SCN that Mamoor Khan S/o Haji Alam Jann bearing Passport No. TR-036350, an Afghan National, was staying in Sameer Guest House in Ballimaran, Delhi. The investigating agency also obtained a photograph of Mamoor Khan from FRRO that was identified by Pawan Kumar, driver of Sehrawat Goods Carrier who corroborated by his statements dated 17th Dec, 2000, 18th Dec, 2000 and 22nd Dec, 2000 after seeing Mamoor Khan's photograph. It was established that Mamoor Khan was involved in import and transportation of silk fabrics by Uzbeki ladies from IGI Airport. Pawan Kumar tendered statement from his personal knowledge because he (Pawan Kumar) was actively involved in transportation of baggage imported illegally by Uzbeki ladies. The fact of Mamoor Khan staying at Sameer Guest House in Ballimaran, Delhi was also confirmed by Abdul Qayum, Manager, and Sameer Guest House who also identified that Mobile No. 9811254485 belonged to....
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....i as Mamoor Khan's brother and with effect from the last week of July, 2000 he was in touch with Sri Zutshi as a substitute of Mamoor Khan. He also identified Mobile No. 9811065987 and landline 3930733 as belonging to Dil Agha and after August, 2000, Dil Agha used the Tel. No. 9811158376. The statement of Shri R.N. Zutshi corroborated the facts contained in the statement of Dil Agha recorded on 23rd May, 2001. Though Dil Agha did not sign his voluntary statement it was duly supported by two independent witnesses. The statement of Dil Agha brought out the nexus that existed between Mamoor Khan and Dil Agha on one hand and the regular passenger like Olga K. Gulia etc. on the other hand as well as the Customs Officers. The association between Dil Agha and Mamoor Khan was also confirmed by Abdul Qayum, Manager of Sameer Guest House, Ballimaran, Delhi, in his statement dated 29th Dec. 2000. Further statements of Dii Agha recorded on 11th July, 2001, 12th July, 2001, 25-7-2001 revealed his own involvement as well as involvement of certain other individuals like Sadullah, Zanzeer Khan & Sanak etc. He also confirmed involvement of certain Customs officers and his money dealings with them f....
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....ferent dates as appearing on Table 1 and 2 of impugned order as depicted at the outset was established to determine quantities imported on other dates. 4.8 Ld. Adjudicating Authority while observing that there was smuggling racket operating and members of such racket were instrumental to cause evasion of customs duty in respect of import of the offending goods, he found that some of the appellants on the plea of cross-examination were trying to cause delay in the processes of adjudication. He noticed in para 415 at page 256 of impugned order that the show cause notice having been issued on 21-8-2001 and 6 years having been elapsed by the time adjudication was made, it was not possible to allow cross-examination for the vague plea raised. He followed the judgment of the Hon'ble Supreme Court in the case of Kanungo and Co. v. Collector of Customs, Calcutta - 1983 (13) E.L.T. 1486 (S.C.) in this regard and held that asking for cross-examination was not a matter of right. 4.9 There were also pleas by some of the appellants to provide them copy of Disembarkation Card. Ld. Adjudicating Authority observed that Disembarkation Card generally contains the details of declarati....
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.... carrying the same to Afghanistan through Kuttar Exports. One of the Appellants, Anudeep Singh admitted in his statement dated 8-12-2000 that he purchased imported silk fabrics from one Afghan, who introduced himself as Khan. (2) All the appellants were in touch with Mamoor Khan on telephone. (3) Gopal Prasad Dokania in his statement dated 5th Jan., 2001 admitted that he knew Mamoor Khan and that he purchased silk fabrics from him. (4) Nitish Kedia in his statement recorded on 5th Jan., 2001 admitted that he knew Mamoor Khan but he denied that he had purchased silk fabrics from him. (5) Anup Singh in his statement dated 1st June, 2001 admitted that he knew Mamoor Khan and Dil Agha but did not deal with them for purchase of silk fabrics. (6) Mahender Jain in his statements dated 19th Jan. 2001 & 1st Feb., 2001 admitted that he knew Mamoor Khan but denied to had any dealing related to silk fabrics. 5.2 Testimony of Abdul Qahar suggested that the trader appellants were aware of the illegal activities of Ms. Olga K. and her associates. Examinati....
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....irlines for conniving, abetting and conspiring in the smuggling of silk textiles through IGI Airport by offender Passenger. Ld. Adjudicating Authority examined written submissions made on behalf of Kyrgyzstan Airlines and also heard the arguments put forth by that appellant at the time of personal hearing on 12th Feb, 2007. He found that as per SCN, illegal considerations were received by the appellant Airline Officers for not recording the actual weight of the baggage for which SCN proposed action under Section 111(f) of Customs Act, 1962. But according to him that section is invocable for wrong entries in Import manifest, as defined in Section 2(24) of the Act. Such Import Manifest refers to the Cargo Manifest and not the Passenger Manifest which was relied upon document in adjudication. In any case, the act of wrong recording of weight of baggage took place in Bishkek and not in the territory of India. Under such circumstances, learned Adjudicating Authority held that issuance of SCN to Kyrgyzstan Airlines was a futile exercise and proceeding against Kyrgyzstan Airlines was thus dropped by him. Adjudication observations and findings against Sanak Khan & Zanjeer Khan and Sadul....
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.....2 These officers were in regular contacts with 4 organizers of offence to allow the offending goods illegally imported to escape notice of Revenue. That prejudiced Revenue and caused huge Revenue loss. Conspiracy was hatched by 4 organizers of the smuggling and offending goods cleared were on 24 dates including the illicit import of 28-8-2000. The offender passengers were ladies and they were bringing China silk mis-declaring quantity as well as value thereof on 24 days prior to seizure on 28-8-2000. All those escapements were subjected to 46 adjudications in past because Revenue was defrauded. The illegal import of 28-8-2000 having resulted in confiscation of offending goods, these 14 officers were found to be abettor of the offence committed under Customs Act, 1962 on past occasions including the event of 28-8-2000. 6.3The entire design against Revenue and mala fide of the Respondent officers came to lime-light on the date when seizure of the offending goods occurred on 28-8-2000. The illicit imports were corroborated by transport of offending goods to reach to the trader appellants. The transporter brought nexus of conspirators, Respondent Officers and offender passenge....
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....icate the officers from their telephone calls with the events occurred on the dates appearing under table 2 in the order of adjudication. In absence of nexus and without credential evidence, learned Commissioner exonerated 14 (fourteen) officers finding them innocent. There was neither connivance nor abetment nor there was ill gain made by these officers since there was nothing on record in that respect. So also no tangible evidence exists against these officers to prove their mala fide. No single evidence exists to prove that the earlier adjudications have ever implicated these officers by any means. By baseless pleading, these 14 officers cannot be brought charges. 6.6 Shri Piyush Kumar, further submitted that when there was no basis to level charges u/s 111 of Customs Act, 1962 to render the goods confiscable and these 14 officers were not contributory to the same, they cannot be brought under Section 112(a) of the Customs Act, 1962. Similarly, Section 112(b) also does not impose any penalty in absence of the elements of that sub-section in respect of 14 officers. It cannot be pleaded by Revenue that the learned Commissioner has not examined any evidence on record when h....
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....tioned in table 13 of Show Cause Notice, their evidence were not recorded to prove against these 14 officers. So also officers who were on duty were never even been questioned to get any information against these 14 (fourteen) officers. Some officers who were never been on duty consequent upon they being relieve on transfer were baselessly implicated. Had the authority been prepared to make a fair enquiry, they would have called all the officers on duty on the date of seizure to the purview of enquiry and recorded their evidence. But that was not done. 6.9 Ld. Counsel submitted that the DRI deliberately excluded certain favoured persons from the scope of enquiry and they were never been questioned or also appeared in the show cause notice. Precisely, he supported the order of the learned Adjudicating Authority and submitted that when these 14 officers were found to be innocent by that Authority, they cannot be implicated by fake pleas without any evidence. He further submitted that suspicion however grave may be cannot be substitute of proof. Reading the statement of facts of Revenue in the appeal folder, learned Counsel submitted that findings and the factual aspects dealt....
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....ions of the learned Counsel for Appellant Officers, categorically submitted as under:- (1) The smuggling organizers who operated the smuggling from outside India through the offender passengers in connivance of the Customs Officers proved themselves to be perpetrators of the offence and caused huge loss to Revenue. They should not be left unpunished in view of echoing evidence against them and the abetting Officers should not be left unpunished under the provisions of Customs Act, 1962. (2) 14 officers who have made the smuggling fruitful on 24 occasions including the event of 28-8-2000, have come to record with their trace of evidence proved their active involvement in abetting the commissions and omissions under law and punishable. So also the offending goods having been allowed by them to escape scrutiny of customs and, such goods being liable to confiscation, these officers were conduits in commitment of the offence and are liable to penalty under law. (3) Smuggled goods having been found by Investigation to have reached destination thereof that proved escapement of the offending goods with the aid....
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....OMS APPEAL NOS. C - 75 - 78/2008 7. Revenue's argument against 4 organisers of smuggling and the airline 7.1 The Respondents Sanak Khan in Appeal Case No. C-75/2008, Zanjir Khan in Appeal Case No. C-76/2008, Sadullah in Appeal Case No. C-77/2008 and Naseem in Appeal case No. C-789/2008 did not appear for hearing. Nor also any Counsel represented them. Therefore Revenue being Appellant in all these 4 appeals, were heard analogous. Learned DR arguing against 4 (four) organizers of offence submitted that these organizers were the king-pin of the entire smuggling process who operated through remote control through various conduits and such conduits became ultimately noticees in the proceedings. The organizers have themselves proved their active involvement when the smuggled goods arrived at the customs Airport and subjected to 46 adjudications as well as the confiscation made on 28-8-2000. The Airline Respondent in Revenue Appeal No. C-74/2008 was carrier of the offending goods. Even the statement recorded from Ms. Olga Kozireva itself proved the modus operandi of the four organisers of the smuggling including the Airline. When the Department proceeded with the en....
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....ntacts to the mobile telephones of the officers who were found guilt by Show Cause Notice. 7.3 It was submitted by ld. DR that the statement of officers viz. Neeraj Kumar, Yashvir Singh, Kanwal Suman, S.D. Rajpal, S.A. Lamb, A.K. Varshney remained uncontroverted by the smugglers. Statement of Dil Agha proved movement of the smuggled goods and that brought entire link as well as proved smuggling with the active involvement of the guilty Officers. The officers Shri Kamal Bajaj identified photographs of Mamoor Khan bringing the smuggling design to the fold of law. Plethora of evidence available on record proved mis-declaration of the weight which remained unrebutted and resulted in 46 adjudications. 7.4 Learned DR further argued that the transporter who was brought to the charge confessed that the smuggled goods were transported and two drivers of the vehicles engaged for transportation of the offending goods were principal witnesses for the movement of smuggled goods to reach its ultimate destination at Chandni Chowk, proved against all the officers. CUSTOMS APPEAL NO. C - 775/2007 8. Submissions on behalf of appellant - Sudhir Sharma 8.1 Ld. Counse....
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.... 28-8-2000 and he has not contributed for confiscation nor abetted nor any omission made, the appellant shall not liable to any consequence of law against him. 8.4 Sri Asthana further submitted that when Shri Sharma was not on duty on 28-8-2000 and there no charge against him for the event of that date, whole proceeding is mis-conceived. He drew attention to Pages 1, 28 and 31 of his paper book to demonstrate role of Shri Sharma and submitted that he was not brought to charge on 10-4-2000, 22-5-2000 and 1-7-2000 for which he cannot be penalised. 8.5 According to Sri Asthana, if Table 2 of OIO (at page 312) alleged breach of law relying on certain telephone calls with some persons and no conversations were recorded, Revenue failed to bring direct nexus of the appellant to the offence and also failed to discharge burden of proof. Shri Asthana further submitted that when this Appellant had never examined the goods on three alleged dates relating to the passengers of those days, no charge can be brought against the Appellant by any subsequent event of 28-8-2000. 8.6 Shri Asthana further submitted that the officers who were engaged in preventive area of the Custo....
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....judication made; this appellant cannot be suspiciously dealt for mere phone calls. When neither Mamoor Khan nor Dil Agha state against the appellant nor the officers involved in adjudication of those three days stated anything against this appellant, no case can be made against the appellant. Revenue's submission against appeal of Sudhir Sharma 8.9 There was neither cross appeal nor cross-objection filed by Revenue against appeal of Shri Sharma in Appeal No. C - 775/07. Ld. DR Shri Summit Kumar submitting a paper book submitted that on all the aforesaid three dates Chinese silk which was prohibited goods were illegally imported. Appellant's involvement cannot be ruled out due to his active involvement through several telephone calls with the organisers of the smuggling activity and also with the offender passengers. Role of this appellant depicted in Table-2 at page 312 and 313 of the order in original clearly proves his abetment for the modus operandi of a group of officers involved in evasion. 8.10 According to ld. DR, this appellant was involved in dialogue with Mamoor Khan and also the passenger Ms. Olga and party and made clearance of smuggled goods with his....
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....C - 2006 (203) E.L.T. 561 and submitted that the ratio laid down in 1996 (86) E.L.T. 460 (S.C.) does not apply where the previous adjudication has already been done. CUSTOMS APPEAL CASE NO. C-776/2007 9. Argument on behalf of the appellant Ajay Yadav 9.1 Learned Counsel Shri Kaushik appearing on behalf of the Appellant Ajay Yadav explained process relating to clearance of silk fabrics in the Airport and referring to para 131 appearing at page 92 of show cause notice submitted that statement recorded from Shri H.R. Rao on 25-6-01 explaining event of 27-2-2000 is worth reading. Shri H.R. Rao did not state against this Appellant. He placed para 132 of the show cause notice appearing at page 93 dealing with statement of Shri Anil Trivedi, Inspector, recorded on 29-6-01. This inspector was posted at the exit gate of the arrival hall on 27-2-2000. That officer did not find anything described in the show cause notice against the appellant. Therefore, this appellant was not at all imputable to any charge when the quantity of goods alleged by show cause notice was not found to have been escaped by Shri H.R. Rao and Shri Anil Trivedi as apparent from para 131 and 132 of sh....
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....ty on the respective dates called for confiscation. 9.5 This appellant was involved abetting smuggling of textiles valued Rs. 17,78,785/- on 27-2-2000. Shri Mamoor Khan, Shri T.R.K. Reddy, Shri V.K. Khurana and this appellant were the prime abettors to cause evasion. The statement recorded from Shri Zutshi under Section 108 of the Customs Act, 1962 was relevant and his retraction being after thought was irrelevant for. 9.6 Sri Summit Kumar prayed to consider the citation made in his written note and he specifically drew attention to para 13 of his note to show analysis of evidence and demonstrate that an established link with Ms. Olga and party made the evasion successful. Therefore this established link invited adjudications on different occasions and called for seizure of the goods. He also drew attention specifically to para 16 of his note to demonstrate that this Officer among others was "Khas Adami" of the smuggling racket. 9.7 Learned DR further submitted that Revenue has established its case beyond doubt. He drew attention to page 11 and 12 of his note and also to the conclusions he has depicted in page 20 and 21 of his note and prayed that all these ....
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....ffice of Additional Collector of Customs, IGI Airport, New Delhi. (9) Office Order No. 158 dated 7-6-05 issued by the office of Additional Commissioner of Customs, IGI Airport, New Delhi. (10) Orders of adjudication dated 15-5-2000, 24-7-2000, 1-8-2000, and 21-8-2000. (11) Judgment of Apex Court in Amrit Foods. 10.2 He drew our attention to table 14 at page 181 to 183 of show cause notice to demonstrate the manner how Sri Zutshi was implicated to charges and made liable to penalty u/s 112(a) of the Customs Act, 1962 alleging his involvement in abetment and confiscation of the goods under Section 111 of the said Act without mentioning the sub-clause under which the allegation falls. 10.3 Learned Counsel further submitted that on the above five days Sri Zutshi as an Inspector of Customs was discharging his duties under the Superintendence of Shri R.K. Tyagi, Shri Yashvir Singh, Shri Anil Madan and Shri Yashvir Singh. There was no Show Cause Notice issued to Shri R.K. Tyagi for the event of 15-5-2000. The proceeding initiated against Shri Yashvir Singh for the event of 10....
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....of conniving. Adjudicating Authority observed in para 416 of the impugned stated that denial of opportunity of cross examination shall not jeopardize adjudication which is contrary to the decision cited by him in his synopsis in paragraph 8. 10.6 Counsel for Appellant drew attention to Dil Agha's statement and submitted that several doubts arise in respect of the depositions recorded from him for which that does not lend credence. He accordingly drew attention to Show Cause Notice para 156 at page 111 to submit that Dil Agha's statement is not creditable and cannot be used against the appellant. To submit so, he referred to sub-para 1 at page 111 of show cause notice and argued that only at page 157 of the appeal folder which contains page 111 of show cause notice, name of this appellant appears. According to him when Mamoor Khan was not subjected to cross examination, this appellant cannot be brought to the charges even if Mamoor Khan said the appellant was their "Khas Adami". Revenue did not discharge its burden of proof to prove that Mamoor Khan's evidence was credible and this appellant was guilty beyond doubt. 10.7 Learned Advocate referred to page 177 of the s....
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....t cannot be used as evidence against this appellant. 10.11 Learned Advocate further referred to para 378 at page 540 of the appeal folder dealing with retraction of this appellant vide para 375, 378 and 381 of the order of adjudication. He contended that this retraction was available with the authorities within two days of recording of his deposition on 17-1-2001 and that was truthful for which that cannot be brushed aside. 10.12 Learned Advocate drew attention to para 419 at page 258 and page 179 as well as page 275 of Adjudication order to explain the events of the five days. Further, he also invited attention to para 458 and 460 of adjudication order in respect of these events. Explaining the events of those five days, he explained that on none of those days, this appellant has abetted any evasion to attract section 112(a) of the Customs Act, 1962. Similarly, Section 112 (b) of the said Act is also not applicable without any specific sub-clause of Section 111 being invoked in the case. 10.13 Learned Advocate further invited attention to page 605 and page 306 of adjudication order which deals with para 158 of the order to submit that sub-clause (d) and sub....
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..... Placing provisions of Baggage Rules, 1998, he drew attention to para 2.2 of the Manual to demonstrate how goods arriving at the Airport undergoes screening process. He submitted that counter No. 4, 5 and 6 of International Air Port is meant to deal with the offending goods. The goods on all the five dates i.e., 15-5-2000, 10-7-2000, 24-7-2000, 1-8-2000 and 21-8-2000 had undergone screening through these three counters. Assessment procedure for clearance of the baggage is dealt in para 2.3 of the Manual submitted in the course of hearing. He specifically submitted that disembarkation card is an essential document submitted by passengers under their signature. Customs Authorities examine passengers to find out veracity of the contents of this card. Deviation to the declaration calls for adjudication. In appropriate cases, X-Ray is also done in respect of baggage. Wherever any questionable baggage is found, detention thereof is done under para 2.3.1 of the Manual. He drew attention to para 2.5.1 of the Manual to show the duties expected to be discharged by Baggage Officers. According to him an elaborate guideline is given to the Baggage Officers and the manner how they shall deal pa....
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.... to protect interest of Revenue confiscating illicit imports and this circular is reiteration of 1996, 1997 and 1999 and 2000 instructions. When the appellant acted questionably he was brought to charges. He also submitted that call details of the aforesaid five days depicted in the show cause notice brought the appellant to the circuit of smugglers and their conduits. The Appellant is not an innocent when he involved himself in evasion. Conduct of the appellant did not prove that he was in contact with informers through the calls appeared in the print out obtained from cell phone operators. There is a specific procedure to record outcome of contacts with the informers. That was not done by this appellant. 10.21 Learned DR submitted that natural justice was followed by the Adjudicating Authority all along. Mere pleading of no cross examination allowed shall not make the proceeding fatal for the elaborate reasons stated by the learned Adjudicating Authority in the order. The burden of proof was well discharged by Revenue bringing out the charges and evidence in the show cause notice for rebuttal of the appellant. Preponderance of probability was in favour of Revenue. Analysi....
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....ion in the case of Surjeet Singh Chhabra v. UOI reported in 1989 E.L.T. 646 (S.C.) to submit that non-tendering of witness for cross-examination shall not make the confessional statement void. Drawing attention to the judgment of the Tribunal in the case of K.P. Abdul Majeed v. CC reported in 2000 (123) E.L.T. 960 (CESTAT), he submitted that statement of co-noticee shall provide a better substantive evidence and the recorded statement under Section 108 of Customs Act is a material piece of evidence. He further relied on the judgment of Apex Court in the case of Naresh Sukhwani v. UOI reported in 1996 (83) E.L.T. 258 (S.C.) to submit that statement relating to co-noticees recorded under Section 108 of the Customs Act, 1962 is a good piece of evidence. He also placed Apex Court judgment in the case of Bhagwan Swarup and others v. State of Maharashtra reported in AIR 1965 S.C. 682. Relying on these decisions, he submitted that an agreement between the conspirators need not be directly proved when that has resulted with outcome of conspiracy. The offence committed by conspiracy can even be proved by circumstantial evidence. The case of the appellant submitted to such a ratio and should....
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....that defence at page-2 of his compilation for the event of 10-4-2000, page-14 for the event of 15-5-2000 and page-25 for the event of 3-7-2000. For the event of 15-5-2000 he raised doubt stating that manifest itself was challengeable by virtue of document at page-17 and 18 of the compilation. By those pages, the Airlines Authority of Kyrgyzstan did not support the case of Revenue saying that some goods were subject matter of transportation by air on 14-5-2000 (in terms of page 19) while the passengers had travelled on 15-5-2000. This material discrepancy does not bring the Appellant to the charge when there were no such goods detected on 14-5-2000. The duty chart appearing for the month of January to April at page-7 and 8 of the Compilation do not bring nexus of Shri R.N. Zutshi with the Appellant. Shri Zutshi was in 'A' shift. But this Appellant was in 'B' shift. Therefore activity of this appellant was not known to each other. Ld. Counsel submitted that the events of 15-5-2000 does not provide any basis to Revenue for the reason that the gate officer Shri O.P. Singh under para 137 of the Show Cause Notice at page 95 did not disclose whether excess baggage have escaped throu....
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....t because they were being examined at red channel. This proves his knowledge about transportation of offending goods by the offender passengers with whom he had intimate connection. 11.4 Ld. DR explained relevant provisions applicable to the case. He also has depicted various Circulars of Board prescribing duty to be carried out by Customs officers on duty and the measure prescribed to combat evasion. The appellant was aware of Baggage Rules and Custom procedure of clearance of the goods. He relied on various judgments of Apex Court in the case of Indo-China Steam Navigation v. Jasjit Singh - 1983 (13) E.L.T. 1392 (S.C.), Kanungo & Company v. CC - 1983 (13) E.L.T. 1486 (S.C.), CC v. D. Bhoormull - AIR 1974 SC 859 = 1983 (13) E.L.T. 1546 (S.C.), Bhanabhaikh Alpabhai v. CC - 1994 (71) E.L.T. 3 (S.C.), Kundan Lal Ballaram v. Custodian Evacuee Property - AIR 1961 SC 1316, C. Sampath Kumar v. The Enforcement Officer - 1997 (96) E.L.T. 511 (S.C.), The Director of Enforcement v. Shri Rohit B. Jhaveri - 1996 (1) All. M.R. 89 (S.C.), K.T.M.S. Mohammed and Others v. UOI - 1992 SCC (3) 178, and Bhagwan Swarup and Others v. State of Maharashtra - AIR 1965 SC 682 to submit that the appe....
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....e also argued that this appellant cannot be penalized for no abetment of smuggling or escapement of goods from the notice of the customs. Apart from these substantial points, he adopts his same arguments that were advanced on the point of law he had argued in the case Shri Sudhir Sharma and Yashpal. Submissions of Revenue 12.3 Learned DR Shri Sumit Kumar submitting a written note invited attention to the statement dated 24-1-01 (page 1 to 30) recorded by the investigation. He placed following summary of statement recorded from the appellant and submitted as under:- (1) Answer to question No. 1 in the statement at page 3 shows that the appellant was using the mobile phone of neighbor. That phone established live-link of the appellant with smuggling racket. Use of phone was relevant evidence instead of ownership thereof. (2) Page 2 of the statement recorded shows that the period involved is February 1997 to July 2000 showing involvement of the appellant with the smuggling gang and also illegal importation as well as escapement of such goods from the notice of Customs. (3) The Appellant officer....
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....er to question No. 19 explains about variation in quantity and value thereof in different adjudication orders. (14) Answer to question No. 19 and 26 when read together, involvement of the appellant in repeated calls with the offender like Mamoor Khan is established on record. (15) The ratio of 1 Kilo = 20 Mtrs. comes out from question 26 and 28. This remained un-rebutted. (16) Answer to question No. 29 was to misdirect the investigation. (17) Reliance on page 31 and 32 of the statement recorded is necessary to prove that a telephone was frequently in use by this appellant without being controverted. 12.4 Learned DR submitted that Dil Agha, Shri Zutshi and Shri Ajay Yadav and other two offender passengers proved direct involvement of this appellant. He invited attention to the summary depicted by him in para 18 of the synopsis and evaluation of evidence made with cross reference to respective tables and pages of Adjudication order. So also he has depicted various provisions of the law applicable along with circulars and notifications depicted in his synopsis. He relied on the decisions appearing in Sl. No. 22, 24, 25, 27, 28, 29, 30 and 7 ....
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.... Acha's statement is totally untrue and that can not be used as evidence against the appellants. On no occasion, telephone numbers of this appellant was uttered by Dil Agha because there was no Mobile Number bearing No. 9811028228 belonging to the appellant. 13.4 Learned Counsel invited attention to para 10 at page 27 of the Adjudication order dealing with the statement recorded from the passenger Ms. Olga and submitted that she did not name this appellant. He had no knowledge about bringing of the goods by Ms. Olga for the reason that letter dated 10-1-2001 written by Dil Agha show that 5 to 20 persons in group were coming with the offending goods. Although entire luggage was booked in the name of one passenger, those were break up of respective passengers who arrived at the airport. Therefore there was no occasion for this appellant to notice that Ms. Olga had brought huge quantity of goods to the airport. 13.5 Learned Counsel further submitted that when the diary aforesaid was with the Investigating officer, they could have put questions to Dil Agha on 22-5-2001 and 23-5-2001. When Dil Agha in his statement dated 23-5-2001 stated categorically that search could n....
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....d found the offender passenger was reporting repeatedly for clearance of her goods, he failed to inform higher authorities for investigation. That has been brought out by adjudicating authority in para 524 at page 294 of the Adjudication order. Ld. Dr submitted that this offender deserves no consideration for the good reasons of Revenue in respect of following events: (1) EVENT OF 27-7-2000 For this, Ld. DR drew attention to para 430 to para 440 appearing at pages 263 to 266 of the Adjudication order. According to Revenue, Adjudicating authority has most judicially examined the evidence before him to come to proper conclusion that the offenders Mamoor and Dil Agha were connected to his appellant. Telephone number of the appellant Shri Khurana was well known to all the offenders of the smuggling racket and that has been brought out by the print out received from the telephone service providers. When the other offenders did not deny receipt of calls from the mobile and residential telephone of this appellant that established mala fide intention of this appellant as well as his ill will. That does not exonerate this appellant when his connection with offenders is establishe....
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....f the appellant is patent from record. Ms. Olga waited to clear her goods till night shirts. Under active involvement of this appellant which cannot be ruled out. (6) Event of 4-8-2000 is explained in para 524 at page 294 of the Adjudication order. Ld. adjudicating authority found that frequent travel was made by Ms. Olga to smuggle the offending goods with active abetment of this appellant and other offenders of the racket. Para 526 at page 294 brought chain of evidence against the appellant to bring him home to the charges. (7) Event of 28-8-2000 appears in para 550 at page 306 and 307 of Adjudication order. These Paras shows that Dil Agha referred this appellant as "khaas Adami". The other appellant Sri Zutshi has rightly brought this appellant to the charge when huge quantity of goods valued at Rs. 50 lakhs was allowed to escape at the cost of Revenue, granting undue favour to Ms. Olga. She had no money at all to pay duty on such goods since duty amount was Rs. 30 lakhs. She was an indigent traveler. But she was supported by the smuggling racket to release the goods. This appellant committed offence for escapement of smuggled goods from notice of custom. All the....
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....d her party, while he was on duty on those days as ACO (Baggage Officer). 15.2 Ld. Counsel Shri Vipin Garg appearing on behalf of Sri Pradeep Rana submitted that this appellant while acting was ACO on 11-8-2000, 14-8-2000 and 18-8-2000 acted on the instructions Shri Anil Swami, Superintendent on duty on those days. The superior Officer had never made any allegation/complaint against this appellant as to breach of duty or breach of law. The appellant merely prepared the Adjudication file for action by higher authority in respect of the passengers who appeared at the red channel since the goods imported by such passengers were scrutinized and levy of custom duty was required. In respect of the 5 adjudication orders of 12-8-2000, only one adjudication order was prepared by this appellant. None of the passengers of all the above 3 days nor Revenue's witness neither Dil Agha nor Mamoor Khan or any of the Customs Officers on duty stated against the appellant. The appellant was implicated to charges using phone call print out received from Cell phone operators. The mobile phone numbers, and residential landline telephone number appeared in the printout and a diary claimed to have ....
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....process shall be delayed. Accordingly natural justice was violated. 15.7 Shri Garg further submitted that when Ms. Olga was found to be main offender bringing offending goods, she had never named this appellant. There was no nexus of this appellant to the alleged dealings. When revenue alleged that on all the above 3 days huge quantity of offending goods have escaped custom duty, there was no evidence to show how such huge quantity could escape through customs exit gate. When the gate officers stated that no huge quantity of goods has escaped the custom barrier, there was no evidence to prove that the appellant was an abettor to the escapement of huge quantity of offending goods. 15.8 Shri Garg's further submission was that this appellant had merely prepared adjudication proposal for the quantity of goods that was directed to him to be proposed. Only for that quantity and description of the goods, this appellant is answerable. When there was no copy of disembarkation card made available to the appellant, revenue has failed to prove the quantity alleged to have been brought to the Airport on all the 3 days for clearance. Ld. Authority in para 419 at page 257 of the A....
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....ant cannot escape charge of breach of law. Had this appellant not been involved in the offence after 12th August 2009, he would have at least brought the smuggling activity to the knowledge of the authority. But he failed to do so. In his own statement he stated that there were request by some lady to help her. Even this fact was not brought by him to the knowledge of higher authorities. When he kept quiet he proved himself to be a perpetrator of offence. Accordingly the appellant himself was good evidence against himself for all his misdeeds of 14th August, and 18th August, 2000. Series of offences committed by the appellant are also exhibited by paragraph 89 and 90 of the Adjudication order. 15.11 Ld. DR relied on para 89 and 90 of the Adjudication order to submit that Dil Agha established a case against this appellant. The sub-para (i) appearing under para 161 of adjudication order shows statement of Dil Agha, clearly proving that Mamoor Khan was the king pin who had left Dil Agha as his agent to operate the smuggling racket in connivance with offender officers through their vaious telephone numbers available in the diary. Name of this appellant appears in that para and ....
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....inging the goods and that was being allowed to escape gate of Airport. 15.14 Ld. DR further submitted that the goods in question were subjected to laboratory test and according to the classification of such goods adjudication was done on all the three days. When the adjudication related to questionable goods, this appellant was quite aware about the nature thereof imported by the offenders. By all means this appellant himself has proved that he had well acquaintance with Ms. Olga, Zutshi and Dil Agha. He cannot, therefore, plead his innocence when he himself suppressed the fact of his connections with the offenders while he pleaded that he was requested by a lady offender to help to clear her goods. Active participation of this appellant is sufficiently proved to hold that he perpetuated commitment of offence in other two occasions also. 15.15 Shri Sumit Kumar, learned DR further submitted that Para 89 of the order of adjudication self speaks that this appellant had left ample of evidence against himself contributing to the gravity of the offence. 26 connections made by this appellant through his Mobile and residence phone was never been brought to the notice of the....
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....icers. When the gate officers did not establish escapement of such quantity, nothing can be held against this appellant. Following instruction of the client, ld. Counsel submitted that there was no test report of the goods exposed for trial in the course of adjudication. Shri R.N. Zutshi has also never named this appellant and this appellant was never been a party to the seizure of goods on 28-8-2000 nor been questioned for the incidents of that day for which no charges can be established against this appellant. APPEAL CASE C-O7/2008 & REVENUE APPEAL NO. C-73/2008 16. Submisions on behalf of the appellant Anil Madan 16.1 This appellant Sri Anil Madan is one of the officers along with the batch of customs officers involved in respect of event of 28-8-2000 resulting in adjudication by order dated 1-10-07. Shri Balvir Singh learned Counsel appearing on behalf of the Appellant Sri Madan submitted that this appellant was implicated to charges for the events of 24-7-2000 and 1-8-2000. So far as the event of 1-8-2000 is concerned, learned Advocate submitted that the appellant was exonerated from charges for that date finding no evidence against him as apparent fr....
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....te officers did not find huge quantity of 1500 kgs of the good said to have been imported by Ms. Merkulova. Accordingly, the charge that was leveled under para 184 of Adjudication order relying on the statement of one of the other appellant Shri Zutshi is unsustainable. Shri Zutshi's statement precisely exhibited in table 13 of the Adjudication order at page No. 152 does not support case of revenue against the Appellant. Zutshi had answered to question No. 5 vaguely. Such a vague answer given by him does not implicate this appellant without any specific inculpating statement. Placing answer to question No. 7, put to Shri Zutshi, he submitted that reading of the answer does not throw light how this appellant was actively involved in the alleged offence for framing charge against him in respect of event of 24-7-2000. 16.5 Learned Counsel Shri Balvir Singh further submitted that when Zutshi's statement was found to be credit worthy by Revenue there was failure to allow his cross-examination. Therefore, Shri Zutshi's statement cannot be used against this appellant being unworthy in terms of reply to question No. 5. Similarly answer to question No. 7 does not suggest any role of....
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....Jain and others is without any conflict of evidence when they all were named by Dil Agha in para 160 of Adjudication order. 16.9 learned DR Shri Sumit Kumar further submitted that although statement was not recorded from Shri Sanjeev Jain, his name was uttered by Dil Agha as is evident from paragraph 161 of the Adjudication order and that statement was given on 11-7-2001. Therefore, Sanjeev Jain cannot be pleaded innocent when he was actively involved and was well known to Dil Agha. 16.10 Appellant Shri Anudeep Singh by his statement dated 1-6-2001 proved his knowledge about Mamoor Khan. He also proved that he knew Shri Mahender Jain and Dil Agha so also in the case of Nitesh Kumar Kedia and Gopal Dokania. 16.11 Ld DR also submitted that when Shri Anudeep Singh was questioned for having proof in terms of Section 108 of the Customs Act, 1962, he denied to give information. Similarly, there was denial by Gopal Dokania and Arun Dokania. But such submission of Revenue was rebutted by learned Counsel submitting that no one can be compelled to give evidence against him self following Article 20 of the Constitution of India. Finally, learned DR submitted that other....
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....eous. So also the evidence relied in the adjudication of 28-08-2000 were found to be cogent and credible lending support to the adjudication in respect of events prior to 28-08-2000. Further, so far as appeals of Revenue against an Airline and 4 (four) other conduits of smuggling racket are concerned; those appeals were neither contested by the 5 (five) Respondents nor the reasoning given by order of adjudication was found to be rational to hold them charge free. So also the governing facts do not suggest so when their acts were detrimental to the interest of justice. Plea of the Airline that its employees played mischief in understating weight of the offending goods remained untenable. Further, finding of the learned Adjudicating Authority that meaning of the term "Import manifest" is confined to cargo manifesto does not appeal to common sense when an Airline maintains record of passenger carrying goods alongwith him of certain weight. Manifest has intimate connection with the passenger carrying the goods. Similarly when Investigation found that Sanak Khan, Zanjeer Khan, Sadullah and Naseem were agents for occasioning movement of goods after the goods leave Customs control, making....
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....ppellant with smuggling racket. He was found to be in frequent and repeated contacts with the offending passengers who were bringing smuggled goods and also his involvement with the gang operating such racket could not be ruled out. Ld. Authority in para 462 of the order brought out the exemplary event of 15-5-2000 when the Flight landed at 9.51 A.M. Shri Zutshi talked to Mamoor Khan 4 times before the arrival of the Flight and 3 times after arrival thereof. Table 11 to the show cause notice at page 136 of SCN exhibits that mobile phone of Mamoor Khan was in vicinity of IGI Airport, Delhi from 9.52 A.M. to 12.36 P.M. and such phone was in use for clearance of smuggled goods. Therefore, active role of the appellant was instrumental to cause loss to Revenue. 18.2 Sri Zutshi tendered evidence u/s 108 of the Customs Act, 1962 and gave a vivid description of various material facts reflecting his perfect knowledge about the modus operandi, occurrences and events of various dates. His thorough knowledge about the smuggling, description and identity of the offencing passengers bringing the smuggled goods, arrangements made for clearance of such goods, conduits operating the smuggli....
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....ay Yadav Superintendent or R. K. Dacolia and A. R. Varshney or Anil Madan, Superintendent and Kanwal Suman and T. R. K. Reddy in different shifts. 18.5 It was further stated by Sri Zutshi that during Oct 1999 rotation, Sri Subhash and J. A. Khan used to distribute the share of baggage Officers and Superintendents. In answer to question No. 8, he quantified the negotiation money for small bags and big bags. So also he quantified his share in the money collected from Mamoor Khan. 18.6 Sri Zutshi in answer to Question No. 9 established identity of Dil Agha (who moved pre arrest bail application for the offence committed as reported in DLT 762, 2001 (59) DRJ 421). Similarly Abdul Qahar who was also a member of smuggling racket was detained in COFEPOSA by order dated 29-01-2001 and was connected with illegal imports made by Ms. Olga K. as reported in 2002 III AD Delhi 380, 2002 Cri LJ 1709. So also Ms. Olga K. was before Hon'ble High Court of Delhi for getting bail being for the offence committed under Customs Act, 1962 (Ref: 2000 Cri LJ 3701, 2002 (63) DRJ 183, 2002 (80) ECC 451. 18.7 Sri Zutshi in answer to question No. 12 provided mobile phone numbers of Sri T....
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....l. I (4th Edition) which reads thus :- "Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to proceedings before courts of law. Members of tribunals may be entitled to draw on their specialized or local knowledge of the type of, issue before them in order to supplement as well as evaluate evidence to find facts by inquisitorial methods, and inspections and to obtain information from other persons: but it will generally be a denial of justice to fail to disclose to a party specific material relevant to the decision if he is thereby deprived of any opportunity of comment on it." [Emphasis supplied] The Hon'ble High Court observed thus:- "In other words, it seems to be a fairly settled position in law that it is not necessary that persons whose statements have been previously recorded must be examined in the presence of the party against whom such previous statements are intended to be used. The rules of natural justice do require that their previous statements must be made available to the party against whom they were intended to be used and such party must be given a fair opportunity to e....
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....t conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. This is so because an admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established. 18.12 Serious arguments although were made on behalf of the appellant Shri Zutshi in the course of appeal hearing, there was no evidence came to light to dissociate him from charges. Circumstantial evidence coupled with his confession made on 17-01-2001 by an elaborate statement reinforced all probabilities of his active involvement with smuggling racket. His nexus and association with offendi....
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....usion of the authority was that uncorroborative statement of Shri R.N. Zutshi against them entitled them to be charge free. Revenue being aggrieved by such finding came in appeal against 14 officers. 19.2 In para 28A of the adjudication order, frequent contacts made by Ms. Olga Kozireva through cell phones on different occasions to different persons came to light. Para 29 of the impugned order also brought out such fact from the statement recorded on 13-12-2000 from Shri Sandeep Bhatia, Security Representative of United Airlines India. Similarly, statement recorded from Shri Ajay Sharma, Security Representative of that Airline on 23-12-2000 proves same fact. It was further corroborated by Shri Virender Sehrawat, Security Representative of United Airlines in his statement dated 8-1-2001 about the mobile numbers used by Ms. Olga Kozireva and Ms. Nazira Ibragimova. There was further corroboration from statement on 3-12-2000, 26-12-2000 and 7-2-2001 by Shri Sunil Puri to such effect as apparent from para 32 of the adjudication order. All these evidence established that Ms. Olga Kozireva and her party were actively and consciously in contact through their mobile phones with vari....
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....e were no satisfactory explanation by them. 19.6 Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it- "all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp. 63 at p. 65 "According to the Proof, which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutel....
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....abilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. When learned Adjudicating Authority followed principles of preponderance of probability in other cases, the case of 14 respondent officers is not an exception. 19.9 Revenue's pleadings all along was that adjudication was done following due process of law on the basis of evidence establishing loss of revenue caused by the smuggling racket in connivance with customs officers defrauding Revenue. When fraud surfaces, that unravels all. Revenue's stand is fortified from the Apex Court judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. - 1996 (86) E.L.T. 460 (S.C.). So also fraud nullifies every thing as held by Apex Court in CC v. Candid Enterprises - 2001 (130) E.L.T. 404 (S.C.) and in the case of Delhi Development Authority v. Skipper Construction Company (P) Ltd - AIR 1996 (SC) 2005. Escapement of offending goods from notice of Revenue was result of fraud against Revenue. The frauds committed by the perpetrators of the offence were in close connivance with the Custom....
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....he design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. 19.12 In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [2002 (1) SCC 100] Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [2003 (8) SCC 311], Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]. Suppression of a material document would also amount to a fraud on the court (see Gowrishankar v. Joshi Amha Shankar Family Trust, [1996 (3) SCC 310] and S.P. Chengalvaraya Naidu's case AIR-1994 SC-853. No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unrave s everything and fraud vit....
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.... corroborated by any independent evidence, all such plea were discarded. Ld. Adjudicating Authority considering plea of the appellant came to the conclusion that since Shri Zutshi named this appellant in his statement and his conversation with the abve said person could not be ruled out, he was liable to be brought to charge and was liable to face the penal consequence under section 112 of the Customs Act 1962. 20.1 So far as the charge of 22nd May 2000 is concerned, the authority had the same basis as aforesaid to penalise him. he noticed that on 22-5-2000, this appellant was on duty when Flight No. K2 545 arrived and five phone calls were made by the appellant with Mamoor Khan at about 8.51 A.M., 9.31 A.M., 10.57 A.M., 11.11 A.M. and 4.24 A.M. Similarly, in respect of event of 1st July, 2000 ld. Authority found that statement of Shri Zutshi was the basis to hold him guilty. This appellant was found to be on duty on that day also. 4 (four) telephone conversations were made by the appellant with Mamoor Khan after arrival of the Flight in that date. Even though the appellant defended its case submitting that he did not put up adjudication proposal on that day i.e. 1st July, ....
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....t of legitimate duty. Accordingly, learned Adjudicating Authority held that Shri Khurana was liable to penal action under Section 112A of Customs Act, 1962 for his role in abetting and colluding with Olga K., Nazira I. and Dil Agha. No evidence was led to contradict above findings except raising doubts on technicalities. Therefore we do not find substance in the defence of this appellant for which his appeal is dismissed. Finding on the appellant Shri Pradeep Rana 22. Shri. Pradeep Rana was brought to charge in terms of para 529-532A at page 296 to 297 of the Adjudication Order in respect of the event of 11 & 12th August, 2000. In para 484 at page 282 he was charged for the event of 22nd May, 2000 and similarly in para 536-539 at page 299-301 charges were made against him for the event of 1st July, 2000. All these events brought this appellant to the charge was on the basis of statement of Shri R.N. Zutshi made on 17th Jan., 2001 and Dil Agha on 11-7-2001. Dil Agha named this Appellant to be a key person of the racket operated by Mamoor Khan while naming Shri Zutshi and Shri T.R.K. Reddy. There were 19 telephone contacts by telephone of the appellant with Dil Agha betwee....
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....7th Feb., 2000 and on the basis of statement of Shri R.N. Zutshi made on 17th Jan., 2001 and adjudication order No. 17730 dated 27-2-2000. Shri Zutshi stated that this appellant used to negotiate and decide the money to be charged from Mamoor Khan for distribution among baggage dealing officers. But there was no evidence led by Revenue for this except statement of Sri Zutshi about negotiation of consideration relied upon. There was no serious allegation against this appellant about making telephone calls to the smuggling racket. However, this appellant was a vital link in placing adjudication proposal. Sri Zutshi clearly spelt out now quantity cleared was suppressed in making adjudication while the quantity actually brought by the offending passengers was more. Therefore this appellant also cannot be held to be charge free when his involvement in clearing smuggled goods surfaced. Thus his appeal is also dismissed. Finding on the appellant Sri T.R.K. Reddy 24. The appellant Shri Zutshi by his statement dated 17-1-2001 stated that this appellant was negotiator of illegal consideration for clearance of the baggage. But Revenue could not adduce any cogent or credible evidenc....
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.... 24.3 When the appellant was in nexus with smuggling racket to facilitate illegal clearance of the offending goods in the manner as come out above from the impugned order and Testimony of Sri Zutshi was corroborated by the modus operandi adopted by this appellant, this appellant submitted himself to charges which remained uncontroverted. Thus appeal of this appellant also fails and that is dismissed. Finding on the Appellant Sri Yash Pal 25. This appellant was brought to charge for the event of 15-5-2000 in terms of para 463 and 464 of the adjudication order at page 277 thereof. Similarly in para 447 to para 450 of the adjudication order at page 271 and 272 charge was levelled against him. The basis of the charge against this appellant was statement of Shri Zutshi recorded on 17-1-2001 and 34 call details made by him during relevant period with Mamoor Khan and he was also found to be in contact with the Dil Agha Khan and passenger Shahlo A. Ld. Adjudicating authority examined the defence of the appellant. When Shri Zutshi categorically named this appellant to be one of the contributors to give shelter to evasion and this appellant could not rule out his contacts w....
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.... also Sri Zutshi described him to be distributor of illegal consideration realised from smuggling racket to facilitate clearance of higher quantity of goods causing duty evasion. The evidence led by Revenue against the Appellant remained uncontroverted and that proved Appellant's nexus with smuggling racket aiding escapement of offending goods from appropriate adjudication. Accordingly his appeal without merit is dismissed. 26.1 Revenue came in appeal against this appellant for the event of 1-8-2000. But no evidence was led by Revenue to appreciated role of the Appellant for that date. Thus Revenue appeal is dismissed. Finding on the Appeals of Traders 27. Finding of the learned Adjudicating Authority and our observations were precisely depicted by us in Para 5.1 and 5.2 of this order hereinbefore. In the course of hearing no evidence were led to demonstrate that all the 7 (seven) trader appellants were strangers to the proceeding. Rather, they established their intimacy with the smuggling racket and proved their deal in the smuggled goods. Statement recorded from them as well as smuggling racket unmistakably disclosed their identity and destination of the ....