TaxTMI 
TaxTMI 
2015 (3) TMI 820
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....ts. The appellants are hereafter referred to by their names for the sake of convenience. The appeals had arisen out of common adjudication order dated 01.10.2007 by the Commissioner of Customs (hereafter referred to as the "Commissioner"). 2. The following questions of law are sought to be urged by the appellants: (a) Whether the findings in the impugned order with regard to abetment by the appellants are justified in law; (b) Did the CESTAT fall into an error of law in upholding the findings based on denial of natural justice, especially the refusal to grant cross-examination to the appellants; (c) Whether the findings based upon mobile phone records and confessional statements of some individuals, notably the co-noticees, is sustainable in law, in the circumstances of the case, in the absence of any other corroborative material; (d) Did the CESTAT err in its findings regarding the method adopted in arriving at the average weight to assess liability, and the absence of essential documents like the passenger declarations. Facts of the case: 3. On 28.08.2000, a foreign national Olga Kozireva tried to illegally import and smuggle into India, a quantity of 81160 y....
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....tities of silk textiles on 24 occasions. Based upon the quantity sought to be smuggled into India, on 28.08.2000 by Olga, the Commissioner deduced, on the basis of an averaging exercise, that the unseized extent of silk textiles was to the tune of 4,21,245 metres, which would have weighed 26,485 kgs and that the Customs Duty evaded was to the extent of Rs. 1,75,78,322/-. The SCN relied upon the following table, which spelt out such details - the table is extracted below: "175. The quantity of silk textiles imported computed on the above basis vis a vis the quantity of textiles assessed on relevant dates prior to 28.8.2000, showed that substantial silk textiles escaped assessment resulting in the evasion of customs duty. The details are presented below:- Date Wt. in Kg Mtr.of silk textileimported Mtrof textile assessed Unasses sed mtr of silk textiles Value of unassessed mtr of silk textiles Customs duty evaded Person who evaded duty A B (imputed on 5 dates) C B x 17.62 D As per record available E C-D in mtrs F E x Rs. 68 in Rs. G 61.2 % of F in Rs. H 1 17.1 2.98 757 13338.34 ....
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.... 421245 28644640 17578322 Notes: OK -Olga, NI-Nazira, SK-Shakista, SA-Shahlo, IKM-Isamu KM, V-Velichko, ML-Merkulova; Duty for 17.12.98 @ 67.4%: Weight does not include normal baggage weight with co-passenger(s); Benefit of âEUR˜textileâEUR(tm)metres assessed in respect of all the group passengers, extended: imputed weight of 1220 k on 10.4.00, 8.5.00 and 14.8.00; impuged weight of 2364 kg instead of reported 1235 kg on 17.7.00 and of 1914 kg instead of reported 1000 kg on 21.8.00; Merkulova Liubov arrived on 14.8.00 hence 14.8.00 weight imputation made in MLâEUR(tm)s name; all figures/calculations are rounded off." 6. In response, all the appellants resisted the SCNs. It was contended that the reliance placed upon the mobile phone call records was insufficient to render any findings and that it was unsafe to rely upon them, as it would be inconclusive in establishing the allegations. The statement of R.N. Zutshi could not, in the absence of any corroborative evidence or material, lead to a finding of abetment as alleged; that in the absence of passengers' manifest and properly secured documents, no e....
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.... follows: "XXXXXX XXXXXX XXXXXX 18.9 Though it cannot be denied that the right of cross-examination in any quasi-judicial proceeding is a valuable right 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. HonâEUR(tm)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) ELT 9 (Bom) and taking into consideration the applicability of concept of principles of natural justice in that regard quoted para 76 of HalsburyâEUR(tm)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 ....
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....ting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees." It is not a matter of right for any assessee to contend that the statements of witnesses should be discarded." Contention of the appellants 10. It was argued, by Ms. Premlata Bansal and Mr. Ashok Bhan, Senior Advocates, Mr. Balbir Singh and the other learned counsel, that penalty under Section 112 of the Customs Act could not have possibly been imposed against the appellants. It was urged that no attempt was to justify the penalty and that under Section 112 penalty can be levied only if the person is in actual possession of the goods and has knowledge that they are liable to confiscation under Section 111. It was argued that the goods in the present case, having been cleared after payment of redemption fine by the importer, had no co-relation to any of the appellants. The orders of redemption based on spot assessment had attained finality. In the circumstances, the penalty of fine leviable under the Act could not be imposed upon someone who had nothing to do with the importation or exportation of goods. 11. It was argued that there is no record to show that th....
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....e loaded on to the aircraft- even in the case of the luggage alleged to have been smuggled on 28.08.2000. In these circumstances, there could have been no culpability attributed to the appellants. Their roles were not defined and the findings in regard to violation of provisions of the Act, leading to imposition of penalties were wholly unjustified. 15. It was argued next that CESTAT went purely by surmises and conjectures in returning adverse findings against the appellants and imposing penalties upon them. All the learned counsel argued that the absence of any substantive evidence, in the form of passenger manifests in original, documentary proof regarding the complicity of the appellants with Olga and her accomplicesâEUR(tm) smuggling activities and absence of any seized material, coupled with the finality attained by previous spot assessment orders, meant that the Customs authorities had no evidence to go by. Merely because some appellants were present at the time when some of the previous spot assessments were made could not lead the adjudicating authority, or CESTAT, to hold that they had been complicit in any wrong doing. The broad brushing nature of allegations see....
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....dication. Thus, the fact that the appellants were not involved in processing the proposal is significant. This escaped the notice of the CESTAT altogether. 18. It was argued that the uncorroborated admission of some charged official - which stood retracted later, could not have been the material used to arrive at adverse findings. In this context, reliance was placed on the judgment reported as Vinod Solanki Vs. U.O.I, JT 2009 (1) SC 1 to the following effect: "22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon." Reliance is also placed on the decision in Pon Adithan v. Deputy Director, Narcotics Control Bureau Madras 1999 (6) SCC 01. It was argued that Shri R.N. Zutshi's statement contains only vague allegations casting adverse reflections upon the conduct of the Appellants, which was not the subject matter of the SCN as distinguished from the specific allegations in Table 14 of the SCN. It was reiterated that the allegations in R.N. Zutshi's statement were n....
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....ppellants with the smuggling racket which had successfully evaded Customs Duty for nearly two years, had been analysed in respect of each date and in respect of each of the appellants. 21. With respect to the issue of the reliance placed upon confessional statements, in the absence of other material, learned counsel submitted that there are several decisions highlighting that Revenue, especially, the Customs proceedings do not involve concerns which are to be addressed in criminal proceedings that involved fundamental freedoms and personal liberties. Reliance was placed upon Naresh v. UOI 1996 (83) ELT 258 (SC); K.I. Pavunni v. Asst. Collector 1997 (90) ELT 241 (SC) and KTMS Mohammad v. UOI AIR 1992 SC 1831. It was argued that whilst in criminal proceedings, the law insists upon the prosecution proving its case beyond reasonable doubt - which is the highest threshold of proof, in quasi-judicial proceedings that involve evasion of tax law or evasion of Customs Duty, the lower threshold of proof - preponderance of probabilities - is to be followed by the adjudicating authorities, learned counsel submitted that a retracted confession is not per se inadmissible or irrelevant in cust....
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.... as on date. On the other side, a perusal of the weight exhibited by the Airlines and the metres assessed in AOs relating to 19.6.2000 brings forth that even on this date voluminous baggage of silk fabrics containing different varieties was brought in by Olga Kozireva, Isamu KM, Merkulova, Shakista. K. and Vetchinkina T. As against the total weight 2333 kgs as per records of Airlines and as detailed in para 74 of the notice, the total meters assessed in AOs are seen to be 45,600 mtrs which seem consistent, logical and reliable. The average metres per kg i.e. weight metre ratio here works out to 19.54. As detailed in para 74(d) of the notice, in respect of Merkulova and Shakista K, 424 kgs of a variety of silk fabrics were assessed to 7000 mtrs on 19.6.2000 producing average of 16.50 mtrs per kg. It is fairly comparable to a variety of silk fabrics having 16.79 mtrs per kg and 45.7 gsm brought in on 28.8.2000. Similarly, 229 kgs of a variety of silk fabrics relating to Olga Kozireva were assessed to 5000 mtrs. leading to average of 21.83 metres per kg. This average is again rationally comparable to another variety of silk fabrics with 36 gms having average of 21.81 mtrs per kg broug....
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....ngs of the Commissioner that even though personal notice could not be effected on those individuals, the requirement of law with respect of constructive notice had been complied with and that since such individuals left the country fully aware of the possible probable consequences, the appellants cannot take advantage of such technicality. 25. Learned counsel submitted that the statements of R.N. Zutshi and Dil Agha defined the role of most of the appellants, i.e. V.K. Khurana and T.K.R. Reddy. In the case of Sudhir Sharma and R.N. Zutshi, the statement of Dil Agha dated 11.07.2001 was adverse to them. Likewise, phone record established the link between these two individuals on the one hand and Dil Agha, Mammoor Khan and others involved in the smuggling racket. It was submitted that the same reasoning applied in the case of T.K.R. Reddy, Pradeep Rana and V.K. Khurana. Learned counsel also invited the attention of this Court to the various tables set out in the adjudication order, set out in the SCN and later in the adjudication order which linked the telephone numbers of the appellant with those of the foreign nationals and others, i.e. Olga, Dil Agha, Mammor Khan, Nazira, Shalu....
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.... unearthed showed that an Afghan National, Mamoor Khan, frequented and stayed at Sameer Guest House in Ballimaran, Delhi. The investigating agency also obtained a photograph of Mamoor Khan from FRRO. One Pawan Kumar, driver of Sehrawat Goods Carrier in his statements dated 17/18.12.2000, and 22.12.2000 identified MamoorâEUR(tm)s photograph, to say that he was involved in import and transportation of silk fabrics by Uzbeki ladies from IGI Airport. Pawan Kumar had personal knowledge because he was actively involved in transportation of baggage brought in by Uzbeki ladies. Mamoor KhanâEUR(tm)s stay at Sameer Guest House in Ballimaran, Delhi was also confirmed by Abdul Qayum, Manager, Sameer Guest House who identified that Mobile No.9811254485 belonged to Mamoor Khan. In his statement he identified the photo of Mamoor Khan. Abdul Qayum disclosed other details regarding involvement of Mamoor Khan. This was confirmed by Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines in his statements dated 26/27.12.2000, 30.12.2000 and 01.02.2001; he also identified Mobile No.9811135982 as belonging to Mamoor Khan. MamoorâEUR(tm)s involvement in illegal import of Chinese silk fabr....
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....s justified in law; (c) Whether the findings based upon mobile phone records and confessional statements of one party are sustainable in law in the circumstances of the case in the absence of any other corroborative material. 28. These questions are inter-related and are taken together. The main argument of the appellants was that the Commissioner and later, CESTAT could not have concluded that they had abetted in the alleged smuggling operations, given that Mamoor Khan was not caught and there was no corroboration on his part. Their supporting argument also appears to be that the absence of the non official abetters (such as Olga, Nazira, Shakista, Dil Agha etc.) in the SCN has prejudiced them, vitiating the findings. 29. Section 112 of the Customs Act, which penalizes, inter alia, abetment, reads as follows: "112 Penalty for improper importation of goods, etc.-Any person,- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, ....
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....ver even seized, since the declarations as to value were accepted. In the circumstances, the conclusion of the appellantâEUR(tm)s complicity as abettors was unfounded in law. 30. The Court here observes that the SCN and findings of the Adjudicating authority have plainly brought out through various connecting strands of materials the interconnection between those involved in the smuggling and the present appellants. Apart from Mamoor Khan, the role of Dil Agha was highlighted; he figured time and again on various dates when the textiles were brought in. R.N. ZutshiâEUR(tm)s voluntary statement dated 17.01.2001 identified Dil Agha as having introduced himself as Mamoor KhanâEUR(tm)s brother and with effect from the last week of July, 2000 he had been in touch with R.N. Zutshi (as a substitute of Mamoor). R.N. Zutshi confirmed that Mobile No.9811065987 and landline No.3930733 belonged to him (Dil Agha) and that after August, 2000, Dil Agha used No.9811158376. This statement corroborated the statement of Dil Agha recorded on 23.05.2001. Dil AghaâEUR(tm)s unsigned statement was duly supported by two independent witnesses. It established a close connection bet....
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....ts of telephone calls made by various noticees amongst each other. The details of these telephone calls are contained in Tables No.7,8,9,10 & 11 of the show cause notice. These tables have been constructed on the basis of print outs obtained from various service providers and the evidence used in the show cause notice is that passengers like Olga K. and others, several Customs officers posted at Airpoort and facilitators like Dil Agha, Mamoor Khan were regularly in touch with one another during the relevant period. The question before me is as to what is the value of these details as evidence of existence of conspiracy and co-relation amongst various players in this game. 391. At the outset, I observe that the details contained in the print outs and consolidated in these 5 tables are not in the nature of transcript of the conversation that might have taken place amongst the concerned parties. It only indicates that telephone calls were made and received during these periods. What actually was said during these telephone calls is not known. Making or receiving of telephone calls by itself is a very harmless activity. However, it acquires certain sinister dimensions if it takes pl....
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....le like Mamoor Khan, Dil Agha or the passengers who wascharged with import of huge quantity of commercial baggage on regular basis it might be possible to impute the knowledge and intention of such co-noticees. Similarly, commonality of interest with the passengers has to be seen in the context of allegations of illegal gratification. Generally speaking, huge quantities of commercial goods would be brought in by passengers in an organized manner only if they have a prior commitment or understanding with some people who can help them in clearance of such goods and such a situation undoubtedly falls within the parameters of abetment, collusion and conspiracy. In the context of the present case, it can be manifested in several ways -for example, preparation of adjudication proposal means only for a small fraction of the baggage actually carried by the passenger. Turning a blind eye and huge quantities being carried by the passengers and allowing them to pass through Green Channel, improper inventorization, gratification and valuation of goods brought by them and so on, the acts of omission and commission are illustrative in character, no exhaustive list of such illegal acts or omissio....
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..... N.B. Bhoir and Ors (2000) 2 SCC 254, the Supreme Court relied upon the confession made by an accused for conviction so long as there was corroboration. The Court held that the allegation of the confession being fabricated was without any basis and the confession could be taken into account while recording the conviction. 33. The Court is conscious that the above decisions were in the context of evidence which was received in regular trials during the course of criminal proceedings. Here, however, the printout details of the calls made between those accused of smuggling, such as Dil Agha, Olga established the allegations of conspiracy and abetment. The statement of transporters, smuggled goods traders, those frequently seeing some of them like the manager of Sameer Guest house, lent further support to the statements of R.N. Zutshi (though retracted later) and Dil Agha. Last but not the least, the previous records maintained in the Airport also confirmed the stories of Olga and Dil Agha about the frequency of visits and that on several occasions differential duty was paid; the corroboration of quantities was likewise founded on scrutiny of the records. 34. It would be worthwh....
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....ta Electronics, CCE Vs. Electrolites Foils. He also contended the argument of pooled baggage on the basis of U.O. Note of D.C. (Vigilance). He has further submitted that adjudication proceedings in the present case were initiated by Mr. Rajender, ACO and not by him. 446. 1 have considered the evidence on record as well as the statement of the noticee. The issue regarding description, quantity and value of the baggage brought in have already been considered and decided by me in paras above. So far as the defence argument of pooled baggage is concerned, the same has been discussed in detail in paras above. The noticee Sudhir Sharma has been explicitly named by R.N. Zutshi in his statement dated 17.1.2000 and the record of his telephonic conversation with Mamoor Khan is detailed in Table No7. However, I find that the noticee officer has not given any explanation of his frequent interaction with people like Mamoor Khan, Dil Agha and Shalo A. It is quite intriguing that one hour after the arrival of flight on the said date, the noticee spoke to Mamoor Khan on 6 occasions. This fact has neither been denied nor rebutted. The noticee has denied knowing Mamoor Khan but has given no expla....
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....inabove, specifically with regard to 1st July, 2000, it was submitted by the noticee that the adjudication proposal in respect of Nazira on the said date was put up by Mr. Rajinder, ACO and not by the noticee. 495. 1 have examined the defence of the noticee with due care. It is true that the adjudication proposal with regard to the main noticee Olga K. and abettor Nazira I. was put up by some other officer. However, the noticee has made no effort to explain 4 interactions that took place between him and Mamoor Khan after the arrival of the flight. The details contained in Table No. 11 on page 138 of show cause notice also shows that during the period of interaction, Mamoor KhanâEUR(tm)s mobile was located at the Airport Terminal No.2. Thus, the allegation that Sudhir Sharma conspired and abetted in clearance of baggage that was not declared finds credence and is proved making him liable for penal action under Section 112 of the Customs Act, 1962âEUR¦" The findings in respect of Shri R.N. Zutshi are as follows: "R.N. Zutshi & V.K.Khurana 521 . R.N . Zutshi and V .K. Khurana are the departmental officers who have been made co-noticees on the allegation ....
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.... have carefully considered the entire gamut of evidences against R.N. Zutshi. and his responses thereto. So far as the validity of his statement as evidence is concerned, the same has been discussed very minutely and in great detail hereinabove. It has also been analyzed why the plea of supposed retraction was meaningless and that how such a retraction does not negate the evidentiary value of the statement. Though in case of Zutshi himself, his statement being totally inculpatory might be enough to draw an adverse conclusion against him; there is further corroborative evidence in the form of his interaction with people like Mamoor Khan, Dil Agha, Olga K. & Shahlo A. Zutshi has not denied this interaction either in his statement or in his written reply or at the time of personal hearing. His only plea is that the contents of conversation are not known. But in the light of his admission coupled with admitted and strong evidence of frequent interaction, non-availability of records of conversation would be a minor thing. All other arguments advanced by Zutshi have also been discussed in detail in the previous paragraphs. Under the circumstances, absolute and deep complicity of R.N. Zut....
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....been computed by taking into account the kind of vehicle used for transport of goods. 483. 1 have carefully considered the evidence available against the noticee as well as their submissions in defence. He was admittedly in touch with Mamoor Khan on regular basis and this fact very strongly corroborates what has been stated by R.N. Zutshi in his voluntary statement dated 17th Jan., 2001. Even on 22nd May, 2000 there was a telephone contact between Mamoor Khan and TRK Reddy at 7.59 AM on 5513999 of TR.K Reddy. The flight arrived at 9.22 AM and TRK Reddy who was on duty spoke with Mamoor Khan again on 6 different occasions i.e. 9.14 AM; 09.15 AM, 09.41 AM; 10.54 AM; 4.19 PM and 4.25 PM as listed on page 173 of the show cause notice. The above facts which have been discussed in great detail in foregoing paras clearly establish the complicity of Reddy in clearance of baggage in league with Mamoor Khan and the passengers. So far as his argument that the manifested weight on 22.5.2000 was minimal does not help his defence much and the acceptability of methodology adopted for working out quantity on those dates when declared quantities were far more than the manifested weight has alrea....
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....t V.K. Khurana is in the form of inulpatory statement of R.N. Zutshi, records of telephonic conversation with Mamoor Khan, Dil Agha, Olga K. etc. at different points of times has already been discussed. On âEUR˜this date particularly, there is evidence to show that DilAgha with his mobile phone No, 9811065897 was present at the Airport Terminal No.2 from 4.45 PM to 7.52 PM and spoke with V.K. Khurana who was on duty on 4 different occasions during this period. In addition to strong evidence already on record, the time and nature of these phone calls which have not been explained by V.K. Khurana in his reply clearly leads to the conclusion that the allegation of abetment and connivance is duly proved against V.K. Khurana rendering him liable for penal action under Section 112 of the Act ibid. ********************* **************** 555. The evidence of complicity and collusion against V.K.Khurana is both substantial as well as strong. VK. Khurana has been specifically named by Dil Agha as a Khaas Admi and this role has also been described by R.N. Zutshi in his voluntary statement dated 17.1.2001. The evidentiary value of both these pieces of evidence has been dis....
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....ment dated 25.7.2001. The DRI have also brought out on page 56 to 58 certain instances wherein he has prepared the adjudication proposal on different dates indicating lesser quantity of textiles than what was actually manifested and brought in by the passengers. I have examined the written defence dated 19th Sept., 2006 filed on behalf of the noticee. The main argument raised in defence is that in respect of 3 dates when Pradeep Rana is accused of abetment, no goods were seized; that the details in Table No. 11 do not indicate of the conversations took place during the alleged telephone calls; that there is no evidence that goods were silk fabrics; that the quantification had not been carried out correctly; that the reliance on Manifest for working out quantity was not accurate; that the value was not correctly determined. The Advocate of the noticee, A.K. Bhasin appeared for personal hearing on 12th Jan 2007 and in addition to the oral averments also submitted 13 additional points for consideration in writing which are duly considered. The noticee Pradeep Rana requested for further time for making more submissions vide his letter dated 1st Feb., 2007. Even though six months have e....
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....ation of such an adjudication proposal. This altogether with the statement of Dil Agha and frequent exchange of telephonic calls with Dil Agua leads to me to unavoidable conclusion that the charge of abetment, conapiracy, and connivance is proved against Pradeep Rana and he is liable for penal action under Section 112 of the Customs Act, 1962." Likewise, the findings regarding Yashpal were as follows: "447. The charges of collusion, abetment and conspiracy against Yashpal is proposed to be established on the basis of following two pieces of evidence: (a) R .N. Zutshi in his statement dated 17th July 2001 has described that Yashpal used to speak to Protocol Superintendents and Officers regarding smooth clearance of the textiles brought in on behalf of Mamoor Khan. (b) The computer print outs show that between 1.4.2000 to 25.7.2000, Yashpal spoke to Mamoor Khan 34 times on telephone while once he was found to be in contact with Dil Agha and twice with Shahlo A. 448. The noticee has filed his written reply vide his letter dated NIL received in the Office of the Comnissioner of Customs, New Custom House, New Delhi, on 17th March, 2005 . He made further written submission....
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.... to be a part of the Official duties of Customs officers. The provisions of Section 136 are attracted only where the offence is committed during discharge of official duties. This provision of the case laws cited, therefore, has no application in the present case. The other arguments of the noticee have already been dealt with in foregoing paras. 450. In the light of circumstances of the case and evidence as discussed above, I hold that charges of abetment, collusion and conspiracy against Yashpal are established and he is liable for penal action under Section 112 of the Customs Act, 1962. ********************* **************** 463. So far as the evidence against Yashpal is concerned, what is discussed above with regard to 10th April, 2000 holds good for this date also. In addition to the general arguments taken in defence, for this particular date, Yashpal has taken a plea that he was on duty on Baggage X-ray of Belt No.6 and he has placed reliance on Duty Roster available as RUD No.E42. He further contended that the name of Shahlo A. did not figure in the passenger manifest of Flight No.545 whereas another passenger Nazira I. had cleared 800 mtrs. of textile after adj....
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....lsewhere. 442. On analyzing the evidence available against Ajay Yadav vis-Ã -vis defence offered by him, I find that the primary evidence is in the form of statement of R.N. Zutshi. I further observe that there is no allegation against Ajay Yadav that he was in touch with any other noticee like Dil Agha, Mamoor Khan, Olga K., Nazira I. etc. on mobile or landline telephone. There is no charge that he spoke to concerned passengers on the their arrival . There is, however, the issue of forwarding the adjudication proposal prepared by VK. Khurana to the shift Dy. Commissioner. Ajay Yadav in his statement dated 16th Feb., 2001 has admitted having handled this adjudication proposal but in his defence, he has stated that the job of examination and determination of quantity/value of baggage was performed by V.K. Khurana and he had only forwarded the adjudication proposal to the shift Dy. Commissioner. 443 It is, thus seen that apart from the statement of Zutshi, there is this AO which points towards complicity of Ajay Yadav in the clearance of non-bonafide baggage. Though the quantification/ measurement of baggage in the first instance is the duty of Baggage Officer, which in ....
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....ova would be enough for any Customs officer to conclude that she was a regular and non-bona fìde passenger. There is documentary evidence that she was on this day was carrying 1,500 kgs. of excess baggage but Anil Madan has failed in his duty to ensure proper inventorisation of her baggage. This coupled with the statement of R.N. Zutshi is adequate to conclude that there was an element of connivance in clearance of such heavy baggage and I hold the noticee liable for penal action under Section 112 (a) of the Customs Act, 1962âEUR¦." 35. In the light of the above discussion, it is apparent that the Commissioner did not go by only the statement of R.N. Zutshi to hold the other appellants guilty; he had a lot of other corroborative materials to support his findings. It is, therefore, held that the AppellantsâEUR(tm) submissions that the charge of abetment could not have been made against them for past transactions in the absence of the goods, or that many of them were not involved or present at the Airport when the actual lone consignment was seized in August 2000, are meritless. Questions of law (a) and (c) as framed are answered against the appellan....
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....m and ors. v. The Union of India & Ors. [1962] Supp. (1) S.C.R. 355. It was also followed in Collector of Customs, Madras & Ors, vs. D.Bhoormul (1974) 2 SCC 544. 37. Bhoormul (supra) is also authority for the view that the law does not insist upon an impossible threshold of proof to establish allegations in Customs proceedings and that if on probabilities the statutory authorities can establish evasion, the legal standards are adequately met with. Here, each of the appellants were implicated for their complicity not on the basis of solitary evidence only, such as confessional statement of R.N. Zutshi, but also other materials: phone call records during the various past occasions when the passenger couriers had landed; the presence and role of the concerned appellants in helping the clearance of consignments, corroboration through statement of others, etc. The chain of circumstances to prove the allegations they had to answer, therefore, had been explained. The appellants, significantly did not seek cross examination for over 5 years, though they were aware that the statements were to be used during the proceedings that had been put to them in the SCNs. Furthermore, they had also....
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....ble that one k.g. of any quality of silk fabrics can contain just 0.52 mtrs or 1.42 mtrs or 2.2 mtrs. All such ratios range between absurd 0.52 mtrs to 7.28 mtrs per kg. These ratios thus have to be excluded from consideration. 402. The above weight-metres ratios need to be understood in the right perspective. Indubitably, except for the dates 19.6.2000 and 28.8.2000, all the remaining ratios, being illogical, are out of place. I therefore focus on the position on these two dates. As regards 28.8.2000, the goods - silk fabrics in six varieties based on gsm [grams per square metre] i.e. 36, 50.1, 45.7, 52.1, 69 and 73.5 gsm are available. The requisite details of these goods i.e. variety-wise total weight in kgs, total metres, average metres per kg and all other relevant information as exhibited by table 2, 3 and 4 are also available. In this context, I find that the proposed weight metre ratio of 17.62 has been computed on the average basis of the above elements of the silk fabrics physically available as on date. On the other side, a perusal of the weight exhibited by the Airlines and the metres assessed in AOs relating to 19.6.2000 brings forth that even on this date voluminou....
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.... kg, to 21.81 metre per kg and 21.83 metre per kg. 39. This Court also notices that the Commissioner did not rely only on the weight metre ratio, but also considered another criterion: the baggage weight on the basis of vehicle capacity on five dates. For this purpose, he took up the issue date-wise, noticing that on 10.04.2000, 22.05.2000 and 14.08.2000, the baggage weight of group passengers, as reported by Airlines was "Zero"but an MMV Canter with 3750 kg capacity of a transporter was used on all the three occasions. On several occasions, the group passengers had hired commercial vehicle of lower capacity, i.e. Tata 407 with loading capacity of 2200 kgs when the baggage weight was not that substantial. The passengers had then chosen to go in for higher capacity vehicle each time. It was held that there was no other reason for hiring a commercial vehicle MMV Canter of 3750 kgs instead of Tata 407 of 2200 kgs except to carry such volume and weight of baggage as could not be carried in lower capacity vehicle but was accommodable in a higher capacity vehicle. The Commissioner proposed a baggage weight of 1220 kgs on each of the three occasions on the basis of the lowest manifeste....
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....does not indicate any column requiring disclosure of the number of packages or weight of baggage carried by a passenger; secondly that a copy of passenger manifest relied upon by DRI was not made available to the Customs officers at the time of clearance. It was argued that as to what was the quantity or description of goods brought in by a passenger, the manifest relied upon by the DRI could not be inferred. The Commissioner dealt with this aspect in paras 396-397 of his order. Noticing that while the form did not require disclosure, he stated that - "A passenger manifest is created in several formats and filed with different agencies by the Airlines depending upon what are the requirements indicated by that particular authority. If the Airlines copy of the passenger manifest does have the details of number of packages and weight of baggage booked by each passenger, it does not become wrong or invalid simply because these details are not required under Customs Form No.70. It is obviously a pre-existing system in the Airlines to record the number and weight of packages booked by individual passenger under the passenger manifest and in fact it can be a very legitimate and conclus....