TaxTMI 
TaxTMI 
2015 (3) TMI 1037
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....he present appellants. There was a divergence of opinion between the two members of CESTAT which led to a reference to a third member. The third member agreed with the view of the member who held that the appeals required dismissal. The CESTAT's majority orders modified the direction vis-à-vis penalty reducing it from Rs. 5 lakhs to Rs. 2.20 lakhs in each case. 3. On 28.8.2000 Olga Kozireva, a Uzbek National, was intercepted at Delhi airport, attending to smuggle a large quantity of prohibited Chinese silk. Her statement under Section 108 led the agencies unraveling a network of smuggling which had in the past managed to ensure that similar large quantities of article were smuggled in on several occasions. During the course of investigation statements of those suspected, including Olga Kozireva and other foreign nationals Dil Agha, Mamoor Khan, Nazira, Valichko were recorded. They were of diverse nationalities i.e. from Kazakhistan and Afghanistan. On the basis of these statements, the statements of certain custom officers too were recorded. The investigations led the summoning of call details from various service providers; besides, the statements of transporters and shopk....
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....tement dated 5th Jan., 2001 has admitted that he knew Mamoor Khan and that he purchased silk fabrics from him. (iv) Nitish Kedia in his statement recorded on 5th Jan., 2001 has admitted knowing Mamoor Khan but he denied that he had purchased silk fabrics from Mamoor Khan. (v) Anup Singh in his statement dated 15th June, 2001 admitted knowing Mamoor Khan and Dil Agha but did not deal with it in purchasing of silk fabrics. (vi) Mahender Jain in his statements dated 19th Jan., 2001 & 1st Feb., 2001 admitted to knowing Mamoor Khan but denied having any dealing related to silk fabrics. Statement of Khem Singh was also recorded but no material facts emerged from him. 547. When we proceed to evaluate the above evidence, I find that Abdul Qahar has stated that he was purchasing silk fabrics from most of the above noticees which was exported to Afghanistan through Kultar Exports. However, most of the noticees while admitting to knowing Mamoor Khan and having some small dealing with him but have denied any knowledge about the passenger like Olga K., or smuggled nature of the imported goods. A perusal of Section 112(b) of the Customs Act, 1962 lays down that possession, removal, keeping, ....
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....in, Anudeep Singh, Gopal Dokania and Nitish Kedia are also well documented. This list is only illustrative in nature and if all details are reproduced, it would be quite exhaustive. A careful perusal of this table shows that every time 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 traders who are noticees on the other. None of the traders have offered any valid explanation of this uncanny coincidence of timing. In my opinion, this evidence lend coorboration (sic) and credence to the testimony of Abdul Qahar and on the basis of this evidence, the element of knowledge regarding the nature of goods can be easily imputed to these noticees. It is true that the evidence in the form of sale/purchase and other documents is not available; circumstantial evidence is adequate to impute knowledge of the illegal character of import of silk textiles which rendered them liable for confiscation under Section 111 of the Customs Act, 1962. Under the circumstances, I hold that Noticees No. 26 to 33 are liable for penal action under Section 112(b) for having knowingly involved themselves in pos....
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....ved from April 2000 till 28.8.2000. But he refused to identify the mobile numbers. 12.7 It is not necessary that investigation should ask the appellant leading question to defeat object of the Investigation meant to bring the offender to the fold of law. What that was relevant for the investigation were put to discover truth and make the case of *investigation successful. Appellant's plea that other traders were not brought to the charge under law has no basis in view of the law laid down by Hon'ble High Court of Delhi in the case of Rajiv Kumar Sharrna V. CCe, Adjudication - 2012 (276) ELT 321 (DEL) holding that negative equality cannot be pleaded as a defence to any action which is in accord with law and justified. It was also held in that judgment that when the reason why telephonic conversation took place remained unexplained that does establish and corroborate a close relationship between: the parties to the calls. The appellant failed to lead any cog.ent reason why calls were made as appearing in Table 10 and 11 of the impugned orders. 12.8 The term "concerned" appearing in Section 112 of the Act has been explained by Apex Court in the case of Sachidananda Banerji V....
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.... record which militates against the appellant, burden of proof shifted to the appellant from investigation which does not get discharged if the appellant is not able to meet the inference arising therefrom following the ratio laid down in the case of Kanungo & Company V. CC- 1983 (13) ELT 1486 (SC). Similarly investigation was not required to prove its case with mathematical precision or accuracy and need not be required to prove every link in the chain as has been held in the case of CC. V. Bhoormul-AIR 1974 Sc 859. Accordingly failure of the appellant to come out with clean hands implicated him to charges rightly leveled against him in adjudication. 12.11 Penalty against the appellant was imposed under section 112(b) of the Act. If any person acquires possession of or in any way is concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation, under section 111 of the Act, he is charged by that section. In the present case conscious knowledge of the trader appellant about character and nature of the goods illicitly imported and his....
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.... and conversations with the foreign nationals. However, as far as others i.e. the other appellants were concerned, there was not a shred of evidence against them. 9. This Court notices that in the main case Sudhir Sharma V. UOI CUSAA No.29/2011 the appeals of the custom officers who were aggrieved by the fact that they were not afforded the right to cross-examine the foreign nationals and had also contended that telephone records ipso facto could not establish their guilt among other arguments were rejected in the common judgment dated 27.02.2015. Those reasons also apply with equal force in the present appeals. The Court in the judgment had relied upon various rulings of the Supreme Court to conclude that the questions of law urged had to be answered against the appellants and in favour of the revenue. 10. In these appeals, we notice that the question of law sought to be urged is with regard to findings of evidence. The order of the Commissioner - as well as the CESTAT in each of the case of the appellants before us, has noted exhaustively the dates and time when the conversation between the appellants and the foreign nationals took place. The appellants argued that such convers....