Just a moment...

Report
FeedbackReport
Bars
Logo TaxTMI
>
×

By creating an account you can:

Feedback/Report an Error
Email :
Please provide your email address so we can follow up on your feedback.
Category :
Description :
Min 15 characters0/2000
TMI Blog
Home / RSS

2011 (1) TMI 297

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....S 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 activities and involved therein. But learned Adjudicating Authority found that charges against them were not proved for which he exonerated them. TABLE - 'B' APPEALS FILED BY REVENUE AGAINST AN AIR LINE AND O....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n 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 dates including the import of 28-8-2000 as depicted in Col. 1 thereof of the corresponding quantity and value appearing in Col. 3 and 4 of the said Table in contravention of provisions of Customs Act, 1962 (hereinafter referred to as "the Act"), evading Customs duty to the extent mentioned in Col. 5 of Table - 1 misdeclaring both quantity and value thereof. Such acts not only invited consequences of confiscation and levy of duty followed by interest in appropriate cases bu....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....- 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   7,61,423   NOT LEVIED           1.5 The Officers whose name appear in TABLE - C and 'D' to this order were found to have connived and abetted smuggling activities on the respective dates noted against each were penalised in adjudication as depicted in the Table -2 to the impugned order appearing at Page 312 thereof. The said Table is reproduced below for convenience of reference : TABLE-2 (Ref. Page 312 of O-I-O) Date on which silk fabrics were illegally imported and cleared without declaration Names of the persons who aided and abetted the acts of omission & commission of the passengers shown in Table-I which rendered the goods liable to confiscation Quantity in Metres of silk fabrics not declared & not assessed on the said date Valu....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Mamoor Khan, Olga Kozireva, Nazira I Pardeep Rana 18496 1257755 7,69,746/- Rs. 1,75,000/- on each 18-8-2000 Dil Agha, Mamoor Khan, Pardeep Rana, Olga K. 6410 435880 2,66,759/- Rs. 75,000/- on each 21-8-2000 R.N Zutshi, Dil Agha, Mamoor Khan, Olga Kozireva, Nazira I. 31425 2136878 13,07,759/-   2. The impugned order was passed adjudicating events of 28-8-2000 and 24 events prior to that date i.e. 17-12-1998, 17-9-1999, 1/2-2-2000, 27-2-2000, 10-4-2000, 17-4-2000, 23-4-2000, 8-5-2000, 15-5-2000, 22-5-2000, 12-6-2000, 1-7-2000, 3/4-7-2000, 10-7-2000, 17-7-2000, 24-7-2000, 27-7-2000, 31-7-2000, 1-8-2000, 4-8-2000, 11/12-8-2000, 14-8-2000, 18-8-2000, 21-8-2000 disclose factual matrix as under which gave rise to different consequences under the Act. Factual matrix of import of 28-8-2000 2.1 The event of 28-8-2000 had following factual matrix for which show cause notice was issued to the members of the smuggling racket for adjudication: (1)     On 28-8-2000 silk textiles measuring 81160 yards (74212 Metres) valued at Rs. 5046416 were found to have been illegally imported into India by Ms. Olga Kozireva by flight K2-545 on 28-8-2000 without....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....iable thereon. (6)     Dil Agha Mamoor Khan, Sanak Khan, Sadullah, Zanjir Khan, Naseem, VK Khurana and Nazira conspired and colluded with Ms. Olga Kozireva and abetted in her acts and omissions which rendered the aforesaid seized silk textiles liable to confiscation under section 111 of the Customs Act, 1962, as well as were knowingly concerned in otherwise dealing with the seized silk textiles which they knew and had reason to believe were liable to confiscation under section 111 of the Customs Act, 1962, and thereby rendered themselves liable to penalty under section 112(a) and (b) of the Customs Act, 1962. (7)     Abdul Qahar was involved in carrying, transporting, disposing, selling and otherwise dealing with the smuggled silk textiles, on three occasions from Jan to March, 2000 and on other three occasions from June to August, 2000, which he knew and had reason to believe were liable to confiscation under section 111 of the Customs Act, 1962, and he thereby rendered himself liable to penalty under section 112(b) of the Customs Act, 1962. 2.2. On the basis of the above factual back ground in respect of event of 28-8-2000, Show-Cau....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....egal import of 28-8-2000 : (i) Silk fabrics measuring 81160 yards [74212 metres] valued at Rs. 50,46,416/- [assessable value] illegally imported by Ms. Olga Kozireva on 28-8-2000 evading Customs duty of Rs. 30,88,406/- attempted to be cleared under mis declaration and 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 and read with Section 11 of the Customs Act 1962 were seized and confiscated under Section 111(d) and (1) of the Customs Act, 1962 granting option to Ms. Olga Kozireva to redeem the said goods on payment of Redemption Fine of Rs. 10,00,000/- [Rupees Ten Lakhs] as well as appropriate customs duty leviable thereon. (ii) Penalty of Rs. 10,00,000/- [Rupees Ten Lakhs] was levied on Ms. Olga Kozireva [Noticee No. 11] under Section 112 of the Customs Act, 1962. (iii) Penalties of Rs. 5,00,000/- [Rupees Five Lakhs] each were levied on Dil Agha [notice no. 31], Mamoor Khan [notice no. 35], Nazira I. [notice no. 40] and V.K. Khur....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tioned in column D of the said Table on the dates shown in column A thereof by the persons mentioned in column E, resorting to collusion, wilful mis-statement and, suppression of facts. Such customs duty were liable to be paid by the persons mentioned in column E of table 14, under the provisions of section 28 of the Customs Act, 1962, along with interest payable thereon under section 28AB of the Customs Act, 1962. (5) The person (as mentioned in column E of Table 14 of SCN) knowingly failed to declare the silk textiles mentioned in column B on dates mentioned in column A in violation of section 77 of the Customs Act, 1962 and illegally imported the same in fraudulent evasion of customs duty leviable thereon mentioned in column D of Table 14 to SCN and of prohibitions/restrictions imposed under the provisions of 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 (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, and their such acts and om....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 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 on them under section 112(a) and (b) of the Customs Act, 1962. 2.10Consequences of illegal imports prior to 28-8-2000 (i) Goods mentioned in column 3 of the Table-1 appearing at Page 310 of the impugned order, illegally imported Prior to 28-8-2000 on 24 occasions by the offender Passengers mentioned in Column 1 of the said Table on respective dates mentioned in column 1 thereof under misdeclaration in terms of Section 77 of the Customs Act, 1962 and 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 evading Customs Duty were liable to confiscation under Section (d) and (1) of the Customs Act, 1962. But the goods not being available for confiscation, no order confiscating the same was passed in the light of the decision in the case....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-4-00K2545 20696 1407355 861301 Shalo A Mamoor Khan, Sanak Olga K, Sudhir Sharma, Yashpal, not passenger but at airport with flight Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-4-00 HY 421 2129 144752 88588 Olga K Mamoor Khan, TRK Reddy, V S Teotia, Parveen Teotia, JA Khan VK Khurana, Ajay Yadav Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 23-4-2000 HY 433 3046 2472 3565 207138 168100 242386 126768 102877 148340 Olga K, Nazira I and Shalo A Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 8-5-2000K2545 6062 6062 412243 412243 252293 252292 Olga K and Isamu KM Mamoor Khan, Sanak Shahlo, Nazira I Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 15-5-00K2545 25630 1742840 1066618 Shahlo A Mamoor Kha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....19 1090106 Olga K Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, V K Khurana Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain. Anudeep Singh 1-8-2000PK 270 5419 5638 368519 383411 225534 234648 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, RN Zutshi VK Khurana* *put up adjudicati on papers Vinod Kumar (Kain) Kamal Suman, Anil Madan Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 4-8-2000PK 270 3934 6040 335485 410744 205317 251376 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, VK Khurana, SD Rajpal* Nitish Kedia, Anup Singh, Khem Singh, Arun Do-kania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh *comes for night duty and has contacts with OK still at a'port and Shri Dinesh Agarwal Director. 11/12-8-2000 22668 1541424 943351 Olga K Nazira I Dil Agha, Mamoor Khan, Sanak Sadullah, Zanjir Khan, Pradeep Rana   Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 1257....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s imposed thereon under the relevant provisions of Export Import Policy, Foreign Trade (Development & Regulation) Act, Foreign Trade Regulation Rules and the Customs Act, 1962? (ii)    Whether the Customs duty, as alleged in the show cause notice has been fraudulently evaded by reasons of collusion, wilful mis­statement and suppression of facts? (iii)   Whether the said imported goods by virtue of being illegally imported into India without declaration, in violation of prohibitions/restrictions and in fraudulent evasion of Customs duty by reasons of collusion, wilful mis-statement and suppression of facts are liable to confiscation under Sections 111(d), 111(f) & 111(1) of the Customs Act, 1962? (iv)   Whether the noticees committed the acts of commission and omission that rendered the said imported goods liable to confiscation and are liable to penal action under the provisions of Section 112(a) & 112(b) or 114A of the Customs Act, 1962? (v)     Whether the Customs duty as demanded in the show cause notice, is recoverable from the notices - Olga K., Shakista K., Shahlo A., Nazira I., Merkulova L. and Others, as mention....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... had paid excess baggage charges to the Airline amounting to US $ 1122 in terms of excess baggage ticket No. 75845100-63154 dated 28-8-2000 as confirmed by Station Manager of Kyrgyzstan Airlines in his statement dated 28-8-2000. Although excess baggage charges were paid on 2200 Kgs. of Textiles, actual weighment of the offending goods was found to be 4211.70 Kgs. It was found that suppression of weight of the offending goods was made by the Kyrgyzstan Airlines. 4.2 Ld. Adjudicating Authority in para 397 appearing at page 250 of the impugned order found that staff of the airlines at Bishkek and other places had hand in glove with offender passengers to suppress weight of excess baggage carried by them without recording actual weight of the goods in consideration of illegal gratification from the offending passengers. Inquiry revealed that several officials of Kyrgystan Airlines in Bishkek were sacked for of their involvement in such act. In his statement recorded on 3-8-2001 Shri H.S. Duggal of Kyrgystan Airlines Manager revealed that : "We have taken the matter up with H.O. and as informed earlier to Customs vide our letter dated 27-12-2000, this matter has been investigated ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....es appeared in the statement of Dil Agha, none spoke about involvement of these people or against them. Finding no corroboration from any independent evidence as well as record, the authority was of the view that these names did not figure anywhere in the voluntary statement of principal witness of Revenue i.e. Shri R. N. Zutshi, a Customs Officer. When the Adjudicating Authority did not find illegal act of these people in Indian Territory, he acquitted them from charges as exhibited by para 553 and 554 at page 307 of the Adjudication Order. 4.7 In para 371 of the impugned order ld. Authority proceeded to examine the illegal imports and clearance thereof prior to 28-8-2000. These dates appear in TABLE -14 to the SCN read with TABLE -2 to the impugned order depicted hereinbefore. It was noticed that certain pieces of evidence gathered by investigation were applicable to all the dates in question. In order to adjudicate the charges in SCN, learned Adjudicating Authority analysed certain common facts and evidence which were relied by investigation respect of the events of all the 24 dates as under:- (A)    While making charge of illegal clearance of baggage on 24....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... in Customs Department for long time. The story of threat and pressure could not be proved by Shri Zutshi leading any evidence to describe the circumstances and incidence of threat. Nor any corroborative evidence was led by him to succeed on his plea of threat. The retraction was found to be doctored as defence for which learned Adjudicating Authority relied on original Statements of Mr. Zutshi which was credential. He also relied on the decision of Dy. Director of Enforcement, Madras v. A.M. Ceaser reported as 1999 (113) E.L.T. 804 (Madras), where the Hon'ble High Court of judicature at Madras clearly distinguished between the evidentiary value of confession under Section 164 of Cr. PC and Section 40(3) of FERA, 1973, corresponding to the provision of section 108 of the Customs Act, 1962. Acquittal of the accused by the lower court was reversed by the Hon'ble High Court observing that retraction of confessional statement on the ground that it was recorded under threat and coercion does not help the cause of the noticee. It was held therein that : "in this case, the petitioner would simply say that he was taken to the Enforcement Directorate where he was compelled to give the state....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....other co-accused. In such a situation, the statement, though admissible, has to be tested against the touchstone of other corroborative evidences available. Accordingly the statement of Sri R.N. Zutshi was considered by learned Adjudicating Authority to be a material piece of evidence against him and also against others. (F)     It was held by ld. Adjudicating Authority that one of the most important players in the entire smuggling of silk fabrics through IGI Airport during the relevant time was one Afghan National named Mamoor Khan. However, on scrutiny of records, the Authority found that no statement of Mamoer Khan was recorded by the DRI. But, his name cropped up repeatedly in investigation report. The smuggling racket being combated on 28th August, 2000 and Mamoor Khan had left the country around 22-7-2000; his statement could not be recorded. However, the statement of Sri R.N. Zutshi recorded on 17-1-2001 gave graphic description about Mamoor Khan who came in contact with him. His telephone number, through which he remained in touch with him over a period of time and offered monetary consideration for helping him in clearance of contraband baggage and who....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f Customs, passengers like Olga K., Nazira, Shahlo etc. and buyers of silk textiles regularly. Further, TABLE - 11 to the Show Cause Notice explicitly shows that Tel. No. 9811135921 belonged to Mamoor Khan and was found to have been used in the vicinity of the IGI Airport on the dates when flights carrying passengers like Olga K., Shahlo, Shakista were arriving at IGI Airport. Not only that, there were frequent telephonic interactions between the telephone numbers of Mamoor Khan and telephone numbers belonging to various Customs officers who were charged of connivance, around the time when the flights were arriving. Such chain of evidence proved that Mamoor Khan had designed entire scheme of smuggling and he was regularly in contact with various conduits of smuggling. (H)   Dil Agha was one of the key players in smuggling activity on aforesaid dates. His name figured repeatedly in respect of import of offending goods on different dates. In his voluntary statement dated 17th Jan., 2001, Shri R.N. Zutshi named Dil Agha, who introduced himself to Sri Zutshi as Mamoor Khan's brother and with effect from the last week of July, 2000 he was in touch with Sri Zutshi as a substit....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he modus operandi of the racket. Frequent contacts by and with Air Customs Officers on regular basis, especially with the officers on duty brought them to charge of connivance and abetment who made the smuggling successful. (J)      Copies of Passenger manifest obtained from Kyrgyzstan Airlines showed the quantity of silk fabrics imported by offender passengers on different dates aforesaid. Table - 14 to SCN depicted all events prior to 28th August, 2000. No seizures of excess commercial baggage took place on those 24 dates. The goods imported on those dates were cleared without payment of duty. The passenger manifests exhibited number of packages and weight of baggage booked by the offender passengers on different dates prior to 28-8-2000. The seizure of goods on 28-8-2000 provided basis to determine the total excess baggage booked in the name of Ms. Olga K. which was 2,200 Kgs. while actual weighment thereof was found to be 4,211.70 Kgs. On the basis of inquiry conducted from the Airlines, quantity of goods illegally imported on different dates as appearing on Table 1 and 2 of impugned order as depicted at the outset was established to determine quantiti....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....DICATION 1. Mahendra Jain C-11/2008 Appearance for Assessee Appearance for Revenue 2. Anudeep Singh C-12/2008 Mr. Shailendra Bharadwaj Mr. Sumit Kumar 3. Gopal Dokania C-13/2008 -do- -do- 4. Anup Singh C-15/2008 -do- -do- 5. Nitesh Kumar Kedia C-16/2008 -do- -do- 6. Sanjeev Jain C-17/2008 -do- -do- 7. Arun Dokania C-18/2008 -do- -do- Show cause notices were issued to trader appellants dealing with textiles operating in Chandni Chowk, Nair Sarak & Model Town areas alleging that they were involved knowingly in acquiring, possessing, dealing or selling of smuggled silk textiles rendering such goods liable to penal action under Section 112(b) of the Customs Act, 1962. The evidence against them was analyzed in adjudication as under :- (1)     Abdul Qahar, an Afghan National, testified in his statement dated 30-11-2000 that he used to buy silk textiles from the traders who are in appeal in the present batch of appeals and was 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 h....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... that whenever passengers came with heavy baggage to IGI Airport at Delhi, frequent exchange of calls took place between Mamoor Khan and Dil Agha on one hand and all the trader appellants on the other. None of the trader appellants could rule out their role in trading with offending goods. Corroborative evidence lent credence to the testimony of Abdul Qahar and on the basis of that, mens rea was established to impute the appellant traders to charge. Circumstantial evidence were sufficient to impute the traders to charge who had knowledge of the illegal import of silk textiles rendering such goods liable to confiscation under Section 111 of the Customs Act, 1962. So also the appellant traders were liable to penal action under Section 112(b) of the Act for their conscious involvement and possession/sale, purchase of the offending goods. Adjudication observations and findings against Kyrgyzstan Airlines 5.3 Show cause notice was issued to M/s. Kyrgyzstan Airlines 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....t of the Airport. Accordingly, he held that the charge of abetment against Sadullah and Naseem was unsustainable. CUSTOMS APPEAL NO. C-59 - 72/2008 6.Submissions of Revenue against 14 officers of customs exonerated from charge 6.1 Learned DR Shn Sumit Kumar arguing appeals of Revenue against 14 Customs Officers submitted that these officers were in dialogue with the perpetrators of offence consciously and deliberately through their mobile telephones which was proved from print outs obtained from telephone operators. Such documents established live link with commitment of offence. Their guilt was proved by plethora evidence gathered by Investigation favouring case of Revenue. But learned Adjudicating Authority did not properly examine the evidence to come to a rational conclusion. He failed to evaluate the evidence and appreciate the same. As a result of which 14 Officers were exonerated from charge for which Revenue has been aggrieved. 6.2 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 orga....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nd Others v. UOI - 1992 SCC (3) 178, Surjeet Singh Chhabra v. UOI - 1997 (89) E.L.T. 646 (S.C.), K. P. Abdul Majeed v. CC - 2000 (123) E.L.T. 960 (CESTAT), Naresh Kumar Sukhwani v. UOI - 1996 (83) E.L.T. 258 (S.C.) and Bhagwan Swarup and Others v. State of Maharashtra - AIR 1965 SC 682. Arguments on behalf of 14 respondent officers 6.5 Repelling the arguments of Revenue seriously, Shri Piyush Kumar, learned counsel submitted that there was no basis to implicate the 14 Respondent Officers since name of none of the officers were uttered by the organizers of offence as alleged by Revenue or Ms. Olga and party. However, 8 officers were named by Shri Zutshi who is also a Customs Officer. But Shri Zutshi without being gained over or without being turored retracted his statement within few days of giving his original statement. That established innocence of all the officers. He submitted that there was no live link at all existing to implicate 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 fi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....er Section 111. No evidence was led by Revenue in this respect except producing list of calls made. Analysis of evidence in order-in-original demonstrated that these Officers had not made any breach of law. The evidence well evaluated by learned Adjudicating Authority cannot be re-evaluated by Tribunal in absence of any perversity shown by Revenue. Revenue has no evidence to discard findings of learned adjudicating authority against these Officers. No cogent evidence has been brought out by Revenue to prove against these officers. The allegation of telephone calls in respect of 2 employees alleged to have been attended to by them also failed to be proved whose phones were proved to have been not available with those officers. The incoming calls even if repeatedly made, that cannot be a basis unless the result of the call brings the case to Section 111. The officers who were also in charge of the respective positions on the dates mentioned 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Shri Piyush Kumar further argued that Section 28 of Customs Act, 1962 by no stretch of imagination can be invoked against 14 officers who were never been named in any adjudication before the event of 28-8-2000. They were never been found to be the offenders in any earlier proceedings since they were under supervision of higher authorities to discharge their duties. They had no role for the alleged escapement of the offending goods if any. He further submitted that no one can be brought to charge by statement of any co-noticee. Even the co-noticee has not left any evidence against these Officers for benefit of Revenue. That too 8 (eight) officers named were also retracted. This is sufficient to say that even preliminarily involved officers were free of charges by the independent witnesses of Revenue. Reply of Revenue to the arguments of respondent officers 6.12 Learned DR Shri Summit Kumar in reply to various submissions 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ood evidence to be used against all the officers since afterthought retractions shall not be defence against the Officers of Customs who were inculpated by various original statements validly recorded under Section 108 of Customs Act, 1962 without pressure, influence or duress. (10)  Law was not properly interpreted by the Adjudicating Authority although material facts and attendant circumstances suggested involvements of the Respondent Officers. Accordingly that part of the order of adjudication exonerating the Respondent Officers from penal consequences of law is liable to be reversed. (11)  Dil Agha's statement was brushed aside by learned Commissioner and statement of officers when established the case against them that was not properly examined. Further decision was made hastily. (12)  The statement of Respondent Officers recorded under Section 108 proved against them. CUSTOMS 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....7.2 Learned DR submitted that statement of Shri H.S. Duggal proved that the passenger manifests were full proof of concealment of the smuggled goods. Statement of Shri Ajay Dhiman confirms that the organisers of smuggling were in active involvement in hatching conspiracy against Revenue. Statement of Abdul Qahar proved various links of the smuggling and smuggled goods which ultimately reached Chandni Chowk escaping notice of Customs and were disposed. Revenue's further contention was that Pakistan citizens who deal textiles were contacted by the Customs Officials and that brought how conspiracy was hatched against Revenue. The organisers proved their intimate connection and active involvement in the smuggling contacting various persons who could be successfully proved from computer print out gathered from "Airtel" and "Essar". That proved modus operandi of the smuggling racket making contacts 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....brought to our notice that on none of these dates i.e. 10-4-2000, 22-5-2000 and 1-7-2000 Shri R.N. Zutshi who was brought to record on 17-1-2001 for examination in response to summon was not the witness to any of the events of these three dates. But according to Revenue, Shri Zutshi having named the Appellant, he (the Appellant) faced charge of abetment u/s 112(a) of Customs Act, 1962 in respect of the goods holding liable to confiscation and duty was evaded. 8.3 Shri Asthana submitted that Section 112(a) of Customs Act, 1962, operates only in respect of the goods seized and meant for confiscation in relation to a particular event. Therefore the event of any of the above dates shall not bring the Appellant to the fold of Section 112(a) when there was no confiscation of goods on those days. He further argued that when there was no omission or commission by the Appellant on 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,....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d in Table-14 of Show Cause Notice as well as Table 2 of the order in original. According to Sri Asthana, Page-184 of Show Cause Notice has merely invoked Section 111 of the Customs Act, 1962 without invoking specific sub-clause under which the appellant had to reply for the consequence proposed by Section 112 of the said Act. The Show Cause Notice issued on the basis of the event of 28-8-2000 that is ab initio void. 8.8 Ld. Counsel, further submitted that earlier adjudication not being reopened, the Appellant cannot be questioned by present Show Cause Notice for the aforesaid three days. Mere telephone calls made by the Appellant and calls made to the phone of this Appellant shall not ipso facto bring the appellant to charge. The passengers on those three days having cleared the goods through red channel and that remained unquestioned except to the extent of adjudication 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 agai....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....i Asthana submitted as under : (1)     There was no material against this appellant on the three impugned dates i.e. 10-4-2000, 22-5-2000 and 1-7-2000. Therefore finding of the ld. Adjudicating Authority was based on extraneous considerations and Revenue neither being in appeal nor in cross objection, they cannot expand the basis which was beyond the Show Cause Notice and argument cannot be advanced beyond purview of order of adjudication. (2)     Revenue's argument is based on irrelevant considerations while ld. Adjudicating Authority has given clear finding on the basis of events of three days exonerating the appellant from events of all the other dates finding no evidence against him. Shri Asthana relied on the decisions in the case of Siddharth Tubes Ltd. v. CCE - 2001 (133) E.L.T. 323 Malhotra Impex v. CC - 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tion of the charges in the show cause notice dated 24-8-01. The evidence gathered was analyzed. He further submitted that entire link of evidence self speak that beginning from the contact by this appellant to the offenders till the goods reached to the ultimate buyer in Delhi, his role came on record and his active involvement to abet smuggling has been proved from evidence on record. This appellant was accordingly caused evasion. The evidence like phone call, manifest details, statement of Shri Zutshi, statement recorded from Dil Agha were direct evidence against this Appellant to suggest that this appellant has abetted commitment of the offence to make the goods liable to confiscation under Section 111 of the Customs Act, 1962 for which penalty was imposable under Section 112(a) and (b) of the said Act. Also the goods of escaped quantity 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ings :- (1)        Statement of Shri R.N. Zutshi, (2)        Rebuttal by Shri Zutshi, (3)        Statement of Dil Agha (4)        Letter dated 27-12-2000 received from Kyrgyzstan Airline (5)        Pictorial presentation about the functioning in the airport. (6)        Letter dated 29-1-01 received from Kyrgyzstan Airlines. (7)        Letter dated 18-1-01 received from the office of Additional Commissioner of Customs, IGI Airport, New Delhi detailing information under RTI Act, 2005. (8)        Letter dated 25-3-1991 from the office 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 A....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... There were variations in the signatures. Therefore page 1 to page 32 of the bunch of document filed saying to have been signed by Dil Agha not attested by the Jail Superintendent that cannot be used as evidence against this appellant. 10.5 Shri Garg learned Advocate submitted in terms of an application filed on 16-3-2005 specific prayer was made by the appellant for cross examination of 20 witnesses including Dil Agha and other officers to test veracity of their statement and materials used against the appellant. But that was not allowed. He drew attention to page 295 in the appeal folder in this regard. The denial appears in para 414 at page 256 of the impugned order. Such failure to allow cross-examination resulted in denial of justice for which this appellant should not be held guilty 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 f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ught to charges. 10.10 Shri Garg further submitted that the Adjudication order does not speak of abetment of the appellant. There is no evidence. Manifest was not available to ascertain quantity of import whether escaped levy of customs duty and whether any duty was evaded for the reasons attributable to this appellant. Accordingly the appellant cannot be implicated to the charges. Learned Advocate further submitted that when manifest was handed over to Customs Authority that must be in their custody. But the same not being exposed to the appellant, he has been denied justice. He further submitted that manifest collected from Kyrgyzstan Airlines was also manipulated which is seen from copies annexed to the list of documents filed in the course of hearing. Such manipulated document 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....vasion. 10.15 The statement recorded from Shri Zutshi under Section 108 of the Customs Act, 1962 is a useful piece of evidence against him and his retraction does not make his statement obsolete because all citations made by Revenue in note submitted discards pleadings of the appellant. He specifically drew attention to para 13 of his analysis of evidence to demonstrate that established link of this appellant with Ms. Olga caused evasion and seizure of goods on 28-8-2000 is testimony thereof. He also drew attention to para 16 of his note to demonstrate that this officer among others was "Khas Adami" of the organisers of smuggling. 10.16 Learned DR further submitted that China Silk imported is a restricted item under Part II under Para 15.2 of the Import policy. 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 cou....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ncluding cell phone print out, proved nexus of the appellant to the loss of Revenue caused by the smuggling racket. 10.19 It was further submitted by learned DR that this appellant connived with the racket and abetment with other officers, he should not claim innocence. He being in charge of counter No. 4, 5 & 6 respectively, he cannot plead that he was innocent when he could notice detect part of the luggage of the passenger should have been subject matter of adjudication. As a man of prudence and diligence, this officer should have reported for further enquiry when offending goods were reaching this country frequently. 10.20 Drawing attention to Circular No. 9/01-Cus., dated 22-1-01, ld. DR submitted that the officers on duty in Air Port are expected 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 hims....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the offender passengers proved that those goods were subject matter of smuggling on the aforesaid five days. This appellant with the aid and abetment of others made the goods to escape from the Customs Control and made deliberate breach of law. 10.24 Ld. DR relied on the decision of the Apex Court in the case of K.T.M.S. Mohammed and others v. UOI reported in 1992 S.C. (3) 178 to submit that merely because a statement is retracted, the deponent cannot be said to have not given voluntary statement or his statement unlawfully recorded. Had there been any coercion and undue influence on the appellant, he should have brought the same by application immediately to higher authorities since he is an officer of customs. He also relied on the Apex Court decision 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 state....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ought goods on 10-4-2000. Accordingly no penalty shall be imposed u/s 112(a) of Customs Act, 1962. But that was not done on that day. This Appellant cannot therefore be dealt u/s 28 or section 112(a) of the said Act for the reason that there was no Adjudication against him in the past. According to ld. Counsel, when this Appellant was never been subjected to any proceeding at page 9 and 10 of the Compilation, this Appellant can be brought to the ambit of law. When an order under Section 112 exists against a passenger on 10-4-2000 and this Appellant was not imputed to charges on that day for that particular confiscation, proceeding against the Appellant is not maintainable. 11.2 Apart from the above legal questions, learned Advocate relied on 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 transpo....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....g that he was in contact with the informers. Such a saying by him is totally unbelievable because there is laid down procedure to record conversations with informers. He also brought to our notice that this Appellant when specifically put to question at page-63 of the Adjudication order, he says he does not remember certain things. When the events were four months before the ultimate seizure on 28-8-2000 nothing has vanished from his memory. He has categorically spoken in his statement that he had seen the boras. He said movement of the boras was well known to him. He admitted that he had never examined the weight of these packages. His further deposition was that he did not examine the bulk luggage brought by some passengers in the flight 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ty as appearing in page 312 of Adjudication Order. 12.2 Shri Asthana submitted that the adjudications made on the aforesaid four days not being reopened and that having reached to finality, this appellant cannot be imputed to charges for those days when he was not dealt by orders of those days. Present Adjudication order passed on 27-9-07 and issued on 1-10-07 cannot hold the Aopellant guilty. The telephone calls were suspected material before the authority to inculpate the Appellant without direct evidence or nexus bringing involvement of the appellant to the charge. The manifest and telephone call print out shall not be basis to implicate the appellant which were not concerned with the event of the aforesaid dates. He 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ty being imported from time to time and frequent arrival of Ms. Olga was within his knowledge. (10)  In answer to question No. 13 the appellant stated that he has not checked documents of Ms. Olga on different occasions. (11)  Answer to question No. 16 shows offending goods imported by the offenders. Those were prohibited goods under EXIM policy. But the appellant kept quiet without bringing the goods for investigation. (12)  Answer to question No. 18 at page 17 shows that Shri Ajay Yadav and Shri Sudhir Sharma were involved in adjudication process of smuggled goods. This does not rule out role of Shri Ajay Yadav and Shri Sudhir Sharma along with the appellant. (13)  Answer 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 a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....appellant. But he whispered his name on 11-7-2001 and 12-7-2001; (2)     Dil Agha's statement by no means implicates or brings this appellant to charge. This appellant in what way connected with the smuggling is also not been stated in the statement. 13.2Ld. Counsel submitted that the diary which was subject matter of the statement dated 11-7-2001 was not the material piece of evidence when that was not subject matter of examination either on 22-5-2001 or 23-5-2001 i.e. prior to 11-7-2001. On 28-8-2000 the offending goods did not come out of custody of customs and Panchnama of 28-8-2000 brought all the 27 bags to seizure. 13.3 Dil 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 th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ntial evidence was so weighty that direct eye witness was uncalled for to hold involvement of this appellant. Entire chain of evidence dealt in different paragraphs of the Adjudication order unambiguously brings this appellant to charge. 13.9 Learned D.R. further submitted that the appellant was aware of the customs rules and law as depicted in para 10 and page 12 of the notes filed. The appellant was not an innocent. He had perfect knowledge of the frequent traveling offenders. When this officer was on duty in the month of July and most particularly on 27-7-2000 and 31-7-2000 followed by next week of Aug '2000 on 1-8-2000 and 4-8-2000 and 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....t telephones of this appellant was actively engaged in contact with Dil Agha who  arrived at the Airport to take possession of the goods brought by the  offender Ms. Olga. (5) Event of 1-8-2000 appearing in para 522 at page 293 of Adjudication order shows that Ms. Olga, soon after delivery of the goods brought by her on 31-7-2000 again returned back to bring smuggled goods again on 1-8-2000. This travel was made within few hours. She was waiting for clearance of goods on all the days till this appellant arrived at the Airport to join in his duty and to clear goods granting undue favour to her. The night shifts duty of 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-....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e at Airport through signals shown by mobile operators cannot prove use of telephone by the appellant nor bring this appellant to charges when he had not used the alleged mobile phone. APPEAL CASE NO. C-89/2008 15.Argument on behalf of the appellant Pradeep Rana 15.1The appellant Pradeep Rana is also one of the Officers who were brought to charges for the events of 11-8-2000, 14-8-2000 and 18-8-2000. Penalty of Rs. 2.00 Lakhs, 1.75 Lakhs and 0.75 Lakhs respectively were imposed under section 112(a) of the Customs Act 1962 being an abettor to the confiscation of goods illegally imported by Ms. Olga and 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed when there was a police raid along with customs officers to his house. 15.6 Reading the statement of Dil Agha recorded on 12-7-2001 appearing at page 105 of the Adjudication order in para 162, Shri Garg submitted that this appellant is no way been exposed by Dil Agha to be vital link to the offence if any commtted by any person. He submitted that statement (para 167 at page 163 of Adjudication order) recorded from the appellant on 25-7-01 should not drag him to charge in absence of any corroborative evidence. Revenue did not allow cross-examination on the ground that the adjudication 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....se of Gouda Vanuatu Reddy v. State of Andhra Pradesh reported in 2004 (13) ILD 715 (SC) So also he relied judgment of the Hon'ble Supreme Court in the case of Joaquin Alamo vs. Commissioner of Customs, GAO reported in 2005 (188) E.L.T. 231 (Trib.-Mumbai) to submit that when the offender has left series of evidence against him through various means like phone call, contacts with the offenders, accomplices, response of the other side through telephones, print outs collected from Cell Operators, movements of goods through the carrier and ultimate sale of the offending goods, this appellant 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 com....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ght this appellant to charge. 15.13 Ld. DR further submitted that when this appellant was not on duty, he was called by smugglers to aid evasion in collusion with other officers who were in duty. While he was on duty he had permitted movement of the offending goods without levy of duty in connivance with others. Although the appellant submitted that huge quantity of goods can not escape when there were so many customs barriers that was allowed to happen with the close connection and abatements with others since he was aware that the offending passengers were frequently bringing 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 t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r authority on the respective dates. He was no way concerned with any other description or quantity alleged to have escaped on all the 3 days. When the Supdt. under whom this appellant was discharging his duty, was not examined by authorities, nothing can be held against this appellant since his higher authority had no complain of escapement of any quantity of goods from the notice of customs on all the three days. Allegation of escapement of huge quantity is unbelievable for the reason that those are bulk in nature and that cannot escape at all notice of the gate officers. 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....compilation which is the letter of the airlines does not prove that any other huge quantity of excess baggage was brought by passenger Ms. Merkulova on 27-2-2000. The reporting airline was also not called for cross examination when certain materials relating to export through Airlines were used against appellant. Ld. Advocate also submitted that statement of two gate officers at page 30 and 39 of the compilation filed by him does not disclose name of this appellant for which there was no basis to proceed against the appellant. He also submitted that the gate 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, h....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the statement of Dil Agha appearing at page 103 of the Adjudication order. Evidence of Wali Abdul Qahar and Dil Agha proved against the traders. He confessed that he was in connection with other appellants in the deal and was in contact with them including Afghan person. He also confessed dealing of the goods in question, proved manner of delivery thereof, disclosed source of goods, and proved identity of carrier of the goods, identity of foreign nationals who were bringing goods reached Chandni Chowk. Acquaintance of this appellant with Sanjeev 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ogent evidence for seizure of the offending goods illegally imported on 28-8-2000 and action of the Adjudicating Authority for the adjudication of the matter of that day did not appear to us to be unreasonable for which appeal against some of Respondent Officers by Revenue for the event of 28-08-2000 sustains and that order also sustains in so far as quantification of the offending goods is concerned which became rational basis for adjudication of events prior to 28-8-2000. We did not find the process of quantification to be erroneous. 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 offe....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....iled to spell out truth. Instead of addressing his retraction to the DRI, he sent that to a different Authority who was strange to the matter at the relevant point of time and acknowledgement of receipt of such retraction was found to have been fabricated. His association with the members of the smuggling racket could not be dissociated. Smuggling perpetuatec for long time and the offending goods could escape customs' scrutiny, resulting in loss of revenue due to close connection of this appellant 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rated about preparation of adjudication proposals for lower quantity than the goods arrived at the Airport. Even collection of money by Sri V. S. Teotia, Yashpal and Vinod Kumar Kain from Mamoor Khan was stated by Sri Zutshi. He also stated that 60% of the collection used to go to Preventive and rest used to be shared by baggage Officers. The distribution for Officers and Baggage staff was used to be done by Sri D. S. Nandal, Superintendent Sri T. R. K. Reddy and V. K. Khurana and Ajay 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 a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... given to the noticee as these proceedings may have adverse consequences, at the same time under certain circumstances, this right of cross-examination can be taken away. Hon'ble High Court of Bombay while dealing with the similar issue in the case of Gyan Chand Sant Lal Jain v. UOI, reported in 2001 (136) E.L.T. 9 (Bom.) and taking into consideration the applicability of concept of principles of natural justice in that regard quoted para 76 of Halsbury's Law of England, Vol. 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 observ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ld be discarded. 18.11 Bearing in mind the law laid down by the Apex Court and the appellants having been put to notice through SCN in the course of adjudication, there appears no force on the submissions of appellants that they were deprived of cross examination. It is well-settled that the effect of an alleged admission depends upon the circumstances in which it was made. An admission is the best evidence that an opposing party can rely upon, and though not 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....em to the grave of the charges without recording their conversations for which they were made charge free in adjudication. They were held to have not colluded nor abetted or committed fraud against Revenue. It was also held by the Adjudicating Authority that the Officers those who were made charge free, there were no incriminating evidence against them even from the statement of Shri R.N. Zutshi an Officer who was charged in adjudication. So also the conclusion 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 Rep....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ty was not in consonance with rule of prudence in respect of 14 Respondent Officers, we made effort to test the issues on the touch stone of principles of preponderance of probability and standard of proof in following paragraphs when certain Respondent Officers were not named by Mr. Zutshi but there were evidence against them in the form of telephonic contacts with smuggling racket for which Adjudicating Commissioner himself has observed that there 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities 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.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... (172) E.L.T. 433 (S.C.) that by "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a "fraud" is an act of deliberate deception with the 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... between 16-3-2000 to  2-6-2000 for the event of 10th April 2000. This appellant was in dialogue with Mamoor Khan six times between 10.26 A.M. to 11.17 A.M. while the Flight bringing the offending goods arrived before 10 A.M. Although the appellant defended submitting that there was no statement made against him by the passenger  Ms. Shalo and he did not talk with Mamoor Khan or Dil Aga and statement of Dil Aga was not 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. Simila....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....azira I. as well as Olga K. Though Shri Khurana disowned ownership of the mobile number in question, that was not acceptable to Adjudicating Authority as narrated in para 440 of the impugned order. Circumstantial evidences proved his active role with Ms. Olga K, Dil Agha and Nazira I, and they had his prior consent to import the offending goods and he perpetuated scandalous clearance without proper declaration and payment 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 mad....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....appellant's consistent contacts as aforesaid made him liable to penal action. Accordingly there is no disagreement to the decision of adjudication authority against this appellant. Consequently appeal of this appellant is dismissed. Finding on the appellant Shri Ajay Yadav 23. Shri Ajay Yadav was brought to charge in terms of para 441 at page 268 of the Adjudication Order in respect of the event of 27th 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 app....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... after arrival of the flight as has been recorded by the Adjudicating Authority in Para 503 of the Adjudication order at Page 288 thereof. Similarly in respect of event of 24-07-2000 when this appellant was on duty he was telephonically in contact with Dil Agha for illegal clearance of commercial baggage of Ms. Merkulova L. This comes out from Para 505 of the Adjudication order at Page 289 thereof. 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....goods for adjudication as a result of which the suppressed quantity escaped duty and thereby duty evasion was caused. Ld. Adjudicating Authority in para 509 of the Adjudication order at Page 290 noticed that when this appellant was on duty on the above date, he placed adjudication proposal for a lower quantity than the actual quantity brought by the offender passenger Ms. Merculova. So 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 ord....