TaxTMI 
TaxTMI 
2015 (11) TMI 592
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....nal as well as the impugned order dated 27th July, 2005 passed by the Custom Excise and Services Tax Appellate Tribunal, New Delhi in Appeal No. C-376 of 1999 cannot be sustained and therefore deserves to be set aside. 3. Learned counsel for the respondents submits that the order in original is based on consideration of relevant documentary and other evidences on record. The Tribunal has also considered the evidences and recorded the findings of fact upholding the levy of penalty under Section 112 (b) of the Customs Act, 1962 (hereinafter referred to as the Act). The findings recorded by the Tribunal are findings of fact. 4. We have carefully considered the submissions of learned counsel for the parties and perused the record. 5. Briefly stated the facts of the present case are that on the basis of the information received by the Directorate of Revenue Intelligence, Delhi, a team of Officers and staff of Customs and Directorate of Revenue Intelligence, intercepted on 18.2.1992 a blue Maruti van bearing registration No. MP 09-H/2648 near Mandhna Railway Station, G.T. Road, Kanpur. The vehicle was being driven by the driver Sri Ram Bilas Mandal and one Ram Mishore Mishra was....
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....elting unit situated in the same building. The search warrant was executed upon Ram Avatar Singhal, who was the partner of the Refinery/melting unit. During the course of search, melting furnace, melting crucible pot, one die/mould and 14 silver bricks were found lying in a hot condition. The furnace and 14 silver slabs were cooled down by pouring water on them. The silver weighing 222.230 kgs, of the purity of . 999 and valued at Rs. 14,77,829/- was seized under Section 110 of the Act. A panchnama was also drawn. The statement of Ram Kishore Mishra, Ram Avatar Singhal, Ram Bilas Mandal and Ram Kumar Kashyap-driver of the Maruti Gypsy, Jagdish Shanker Trivedi alias Jijaji and the panch witnesses who confirmed the recovery of 79 silver bricks of foreign markings from the premises of the appellant and the statement of Sri Om Prakash and others were recorded under Section 108 of the Act. 6. On the basis of the aforesaid evidences and on the belief that the seized goods were liable for confiscation under the Act and the appellant and others were liable to penalty, show cause notices dated 8.6.1993 under Section 124 of the Customs Act were issued to the persons concerned including th....
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....ecorded at Kanpur and Delhi at different times on the same day brought about the involvement of the noticees in the smuggling of the silver. It was also held that there was no proof regarding letting out of the premises to Ram Avatar Singhal and no body came forward to demarcate the area from the doodh ki dairy of Ashish Kumar Chaurasia. It was held that the various actions and the happenings at various places in Kanpur and in Delhi led to be discovery of the chain of smuggling network and Ashish Kumar Chaurasia was the master mind who operated the network. It was held that from the statement of all concerned, the involvement of Ashish Kumar Chaurasia was proved beyond doubt and it was clear that he was directly involved in possessing, concealing, melting, transporting of smuggled silver for quite some time even before the instant seizure and that his role was much more than a paid carrier or storer and he appeared to be the organiser of the entire smuggling chain and obviously the biggest beneficiary of these acts. The cross-examination of the officers, A.K. Chaturvedi and Simon which was done by Ashish Kumar Chaurasia also revealed the involvement of Ashish Kumar chaurasia as the....
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.... it was held that he was a partner of M/s Ram Avatar Naresh Kumar and tat on the morning of 18.12.1992, he was the person who woke up the driver Ram Kumar Kashyap, and loaded 25 silver bricks in the Maruti Gypse No. UP 78F/5344 and had knowledge of the contraband silver being transported to Delhi in a concealed manner, and was thus directly concerned with concealing, melting and transporting the contraband silver to Delhi." 10. The Tribunal considered the contention of the appellant with regard to the alleged denial of principles of natural justice by not offering witnesses for cross-examination and held in paragraph No. 7.2, 9 and 10 of the impugned order as under: "7.2 In the present case, however, ample opportunity were given to Ashish Kumar Chaurasia and other appellants to deal with the material which was sought to be relied on against them by referring it in the show cause notice. We have no reason to doubt the statement made in the impugned order that as many as forteen opportunities of personal hearing were given from 5.2.1994 to 16.11.1998 to the appellants and the desired persons for cross-examination were also called, but, either adjournments were sought on o....
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....portunity to crossexamine the witnesses was not violative of principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held: "3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, witnesses were required to be called. But in view of the confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the Panch wi....
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....an offence and, had a fundamental right against testimonial compulsion under Article 20 (3), and thereby create a situation where each one of them breath, would ask for crossexamination of the other and refuse to be cross-examined, and then contended that refusal has resulted in failure of proper hearing. Therefore, principles of natural justice do not require that in matters like this, persons who had given information should be allowed to be crossexamined by the co-noticees on the statements made before the customs authorities. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-noticees by each one refusing to be crossexamined by resorting to Article 20 (3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar C....
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....No. MP 09-H/2648 with 25 silver slabs which were made by him by melting the foreign marked silver ingots in his refinery/factory. He had come to know that the vehicle was intercepted. He also stated that there was a concealed place in the vehicle for keeping the silver. The cavities were specially made in the car to transport the silver so that it was not detected. He also admitted that he had sent 25 silver slabs which were recovered from his Maruti Gypsy. The driver, Ram Kumar Kashyap was accompanied by Jijaji (Jagdish Shanker Trivedi) in the Maruti Gypsy which was also intercepted. He also admitted that 14 silver slabs and one silver 'thakia' (lump) were recovered from his refinery/factory. In his statement recorded on 20.12.1992, he again referred to the concealed cavities in the vehicles stating that Ashish Kumar Chaurasia had got them made. he has also stated that Ashish Kumar Chaurasia had shown to him the place where he was concealing the silver. He stated that Ashish Kumar used to bring silver ingots in his vehicle to his refinery for getting them melted. He used to bring 7 to 8 silver ingots at a time. He further stated that he was keeping the account of the sale ....
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....a prayer was sought in the Civil Court for removal of some wall which was erected. No certified copy of the plaint was produced. It appears that though that suit came to be decided ex-parte much later, there was no attempt made to bring the fact of any rented portion being misused by Ram Avatar Singhal on the record of the proceedings. If there was any element of truth in the defence sought to be put up by Ashish Kumar Chaurasia that the silver ingots were recovered from a portion let out to Ram Avatar Singhal then that would have been brought on record in the suit filed by his brother in which he was made a supporting party. No prayer for eviction was sought in that suit. In view of the positive evidence, in the nature of statements of several witnesses, it is clear that the silver ingots were dug out from the premises which were in possession and control of Ashish Kumar Chaurasia. There was no reason for Om Prakash to falsely implicate his master. Having regard to the various statements earlier made by the noticees and other witnesses, it is evident that subsequent attempt was made by some of the appellants to retract them in the criminal proceedings was only an after-thought. Af....