TaxTMI 
TaxTMI 
2016 (2) TMI 142
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....hief Commissioners while exercising power u/s 129D of the Act to authorize filing of appeal by Revenue did not hold that the order appealed was neither legal nor proper, while such objection was neither made by respondents earlier before Tribunal in the first round of litigation nor before Hon'ble High Court in appeals. SL. No APPEAL NO. MISC APPLICATION NO. RESPONDENTS SL. NO APPEAL NO MISC APPLICATION NO. RESPONDENTS 1. C-59/2007 C/M/459/2012 Kamal Bajaj 8 C-66/2008 C/M/67/2012 D.S. Nanadal 2. C-60/2008 C/M/01/2012 V.S. Teotia 9 C-67/2008 C/M/2/2012 Neeraj Kumar 3. C-61/2008 C/M/75/2012 Parveen Teotia 10 C-68/2008 C/M/3/2012 Yashvir Singh 4. C-62/2008 C/M/74/2012 J.A. Khan 11 C-69/2008 C/M/68/2012 Kanwal Suma n 5. C-63/2008 C/M/69/2012 Vinod Kumar [Kain] 12 C-70/2008 C/M/5204/201 2 S.D. Rajpal 6. C-64/2008 C/M/240/2012 R.K. Dakolia 13 C-71/2008 C/M/213/2012 S.A. Lamb 7 C-65/2008 C/M/70/2012 A.K. Varshney 14 C- 72/2008 C/M/214/2012 V.K. Bharadwaj 2. Hon'ble High Court of Delhi disp....
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....rival hall and she was questioned. She denied to have brought any dutiable goods of commercial quantity and she had no means to discharge customs duty on 27 pieces of baggage manifested as 2,200 kgs. It was also found that the quantity and value of import was not disclosed by that passenger. 4.2 In terms of Para5.6 EXIM Policy 1997-2002 read with Section 3(2) and (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993, the goods of above description and nature were prohibited/restricted and import thereof in contravention of the said provisions is liable to confiscation under section 111 of the Act as smuggled goods in terms of section 2 (39) thereof. Accordingly those were seized. 4.3 Ms. Olga was arrested on 29th August 2000 as smuggler of aforesaid goods and being denied bail by learned ACMM, was before Hon'ble High Court of Delhi in bail application as reported Olga Kozireva v. UOI on 18.5.2001 - 2001 Cri U 3701: 2002 (63) DRJ 183: 2002 (80) ECC 45. Her arrest paved the way for extensive enquiry and investigation. In her statement under section 108 of the Act, she revealed about her frequent travel....
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.... 2,07,138 1,68,100 2,42,386 1,26,768 1,02,877 1,48,340 OlgaK, Nazira I and Shalo A MamoorKhan,Sana k Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 8-5-2000 K2 545 6062 6062 4,12,243 4,12,243 2,52,293 2,52,292 Olga K and Isamu KM Mamoor Khan, SanakShahlo, Nazlra I Nitish Kedla, Anup Singh, Khem Singh, Arun Dokanla, G opalDokania, Sanjiv Jain, Mahender Jaln, Anudeep Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan,Sana k, NaziraI, RNZutshl , Yashpal, Vinod Kumar(Kaln), VSTeotia, RK Docoliya , AKV arshney, DSN and al Nitish Kedla, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokanla, Sanj'Main ,Mahender Jain, Anudeep Singh 22-5-00 K2 545 18296 12,44,155 7,61,423 OlgaK Nazlra I and Shahlo A Mamoor Khan,Sana K TRKReddy, Sudhlr Sharma, Neeraj Kumar Nitish Kedia, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko Mamoor Khan, Sanak, Nazlra, Isamu* K MMitrushov Nitish Kedia, Anup Singh, K hemSingh, Arun D....
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....r Khan, VKKhurana,SDRaj pal* 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 15,41,424 9,43,351 OlgaK Nazira I DII Agha, Mamoor Khan, Sanak Sadullah, Zanjir Khan, Pradee pRana Nltish Kedla, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 12,57,755 7,69,746 Merkulova DHAgha,Olga K*NaziraI*, *notpassengersbut assessed. Mamoor Khan, SanakSadullah, Zanjir Khan, Pradeep Rana NitishKedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, M ahenderJain, Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 2,66,759 Nazira I DIIAgha, MamoorKh an,Sadullah, Zanjir Khan, Olga K,Prade epRana,SA Lamb, VK Bhardwaj Nitish Kedia,Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania,Sanjiv Jain ,Mahender Jain, Anudeep Singh 21-8-2000 K-2 545 31425 21,36,878 13,07,759 Merkulova L DilAgha, Mamoor Khan, Sanak Sadullah, ZanjirKhan, R.N. Zutshi, Olga K*, Nazira *, *no....
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....r passengers named in column E of TABLE -1 on different dates in consideration of illegal gratification. That resulted in loss of customs duty of the amounts depicted in column "D" of Table - 1 above. They were constantly in touch telephonically with Mamoor as well as offender passengers before and after arrival of the flights bringing the offending goods to India. He identified Mobile No. 9811065897, land line 3930733 and Mobile No. 9811158376 used by Dil Agha during different periods in smuggling of the offending good. Dil Agha confirmed his intimacy with Shri Zutshi in his statement dated 23.05.2001 and brought out nexus of offender passenger viz., Olga K. Gulia etc., with Respondent Customs Officers who facilitated customs clearance of smuggled goods in consideration of ill gain. 4.9 Investigation unearthed evidence demonstrating conscious and active involvement of Respondent Customs Offices whose name appears in column "F" of TABLE - 1 in clearance of smuggled goods of the quantity and value as depicted in that Table. Their negotiation and settlement with Mamoor Khan for payment of illegal gratification surfaced. 4.10 Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines ....
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.... e.g., Neeraj Kumar on 22.05.2000 (at Page - 137 of SCN), on 19.06.2000 (at Page - 138 of SCN), and on 01.07.2000 (at Page - 139 of SCN). Similarly telephonic contacts by Dil Agha with the Respondent Customs Officer S. D. Rajpal on 04.08.2000 (at Page - 144 of SCN). The offender passenger Kozireva had telephonic contacts with the Respondent Officer S. D. Rajpal on 04.08.2000 (Page 144 of SCN), S A Lamb on 18.08.200 (at Page - 146 of SCN) and with V K. Bharadwaj on 18.8.2000 (at page 146 of SCN). 4.14 TABLE -12(at page 150 to 154 of SCN) shows that the Respondent Officers Neeraj Kumar, Yashvir Singh admitted 4 calls exchanged between him and with Ms. Olga. K.S. A. Lamb admitted to have 2 calls exchanged between him and Olga K, Kanwal Suman admitted exchange of 1 call with Olga K., S D Rajpal admitted to have 6 calls exchanged between him and Mamoor Khan and 2 calls exchanged between him and Olga K. They also identified their telephone numbers which were used in smuggling for contacts. 4.15 TABLE -7 , 11 AND 12 to the SCN read with the statement recorded from R. N. Zutshi as is apparent from Para 79 at page 44 of SCN unerringly demonstrated telephonic contact of Mamoor Khan, Di....
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....pector 04.08.2000 9811008819 (M) Mamoor Khan - 8 Calls Dil Agha called on 04,08.2000 Olga K. on 04.08.2000 13. S.A. Lamb Preventive Officer 18.08.2000 9810055243(M) Mamoor Khan - 2 Calls Olga Kon 18.08.2000 14. V.K. Bharadwaj Superintendent August 1999 to July 2000 and from July 2000 in Baggage section 18.08.2000 9810032247 (M) Res: 7102235 Mamoor Khan - 1 Call Olga K on 18.08.2000 TABLE - 3 PHONES USED BY OFFENDER PASSENGERS AND RACKETEERS IN SMUGGLING Name of the Passenger Phones used Olga K. 98102 22162 (Airtel) Activated from 03.03.2000 Shalo 9811007003 Nazira 98111 92565 from 11.6.2000 98112 65609 used on 30.8.2000 PHONES USED BY SMUGGLING RACKEETERS Name of the smuggling racketeer Phones used Mamoor Khan Installed in Sameer Guest House 3959597 9811135921 9811254485 Activated on 30,08.2000 3930733 Oil Agha 9811065897 3930733 98112 58376 operated from 31.08.2000 4.16 On 23.05.2001 (Ref: Para 163 at page 114 - 117 of SCN) Dil Agha confirmed involvement of Respo....
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.... depicted in that Table. On the basis of inquiry conducted from the Airlines, quantity and value of such goods as appearing in the table was determined and duty evasion thereon detected. 4.21 Statement recorded from Shri R.N. Zutshi on 17/01/2001 was one of the crucial and material evidence exposing the racketeers and Respondent officers including their modus operandi followed by clearance of the smuggled goods without payment of duty and escapement of adjudication. Their close association sabotaged Revenue. Sri Zutshi along with his associate Respondent officers was party to the settlement of illegal gratification as was revealed by him, Dil Agha and other Respondent Officers in their statements. They had close understanding and conversations with the following members of the smuggling racket depicted in TABLE - 4 below and facilitated clearance of smuggled goods on different occasions without payment of duty and proper adjudication: TABLE - 4 NUMBER OF TELEPHONE GALLS MADE BY SMUGGLING RACKET TO THE RESPONDENT OFFICERS AND THE MEMBERS OF THE RACKET Name of the person with whom conversation was made No. Of occasions of contact Period of contact Mamoor Khan ....
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....oney for small bags and big bags and his share in the money collected from Mamoor Khan. 4.24 Sri Zutshi identified the mobile phone numbers of Sri T. R.K. Reddy, V.K. Khurana, Yashpal, KanwalSuman, S. D. Rajpal, Yashvir Singh which were found by Investigation being used in smuggling. That could neither be ruled out by these respondents nor proved to be unconnected with smuggling activity except their pretence of innocence. Evasive replies were given by them to mislead investigation. Respondents failed to rule out their close proximity and intimate connection with the smuggling racket. That brought out their alliance and they proved their exclusive knowledge. Their collusion, nexus and connivance could not be ruled out. Investigation countered their presumption of innocence by presumption of guilt from cogent and credible evidence gathered against them. 4.25 Table 13 (appearing at pages 157 to 161) in SCN brought out involvement of Respondent Officers: {1)3 A Khan, (2) D S Nandal, (3) R K Dacoiya, (4) A K Varshney, (5) V S Teotia and (6) Praveen Teotia In clearance of smuggled goods. They were involved in negotiation and settlement of quantum of illegal gratification for illeg....
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..... 15-5-2000 K2 545 25,630 17,42,840/- 10,66,618 Shahlo A VinodKumar(Kain), VS Teotia,RK Docoliya,AKVarshne y, DS Nandal 22-5-2000 K2 545 18,296 12,44,155/- 7,61,423 Olga K Nazira J and Shahlo A Neeraj Kumar 1-7-2000 HY429 8,220 5,58,946/- 3,42,075 Olga K Neeraj Kumar. 10-7-2000 K2 545 21,496 14,61,755- 8,94,594/- Olga K V S Teotia, R K Dacollya, A K Varshney, D S Nandal 24.7.2000 K-2 545 25,630 17,42,840 16,66,618/- Mamoor Khan anc Olga K / Yashvir Singh, Vinod Kumar (Kain) and Kamal Suman 1-8-2000 PK270 5,419 5,638 3,68,519 3,83,411 2,25,534/-2,34,648/- Olga K Nazira I VinodKumar (Kain), KanwalSuman, 4-8-2000 PK270 3,934 6,040 3,35,485 4,10,744 2,05,317-2,51,376 Olga K Nazira I SDRajpal 18-8-2000 PK-270 6,410 4,35,880 2,66,759/- Nazira I S A Lamb, V K Bhardwaj 4.28 Statements of Mr. Zutshi was held by learned adjudicating authority to be credential following the decision in the case of Dy. Director of Enforcement v. A.M. Ceaser 1999 (113) E.L.T. 804 (Mad.), where the Hon'ble High Court of judicature at Madras distinguished between t....
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....he outset. MISC. APPLICATION NO. C/M/69/2012 7.1 Learned Advocate Shri B.L. Narasimhan, appearing in the appeal No. C/60 of 2008, 67/2008 and 68 of 2008 led by other counsels in different appeals, challenged maintainability of appeals of Revenue through a batch of Misc Applications advancing argument that review made under section 129D of the Act by the Committee of Chief Commissioners does not show that the impugned order appealable was "neither legal nor proper" since power under that section is limited to the examination of legality and propriety of the order appealed. The Committee travelled beyond its jurisdiction without making above finding. 7.2 It was submitted that what is "legal and proper" was subject matter of scrutiny before the Apex Court in the case of Lachchman Das v. Santosh Singh [1995] 4 SCC 201. Emphasizing Para 7 and 10 of the judgment it was argued that the tests of "legality and propriety" should meet certain attributes of law. Similar such expressions having been used in Customs Act 1962, in absence of categorical findings to that effect the order appealed shall neither be legal nor proper. Therefore appeals of revenue are not maintainable. Reliance....
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....ts at this stage since Tribunal has no power to touch the observations of Hon'ble High Court but should only carry out all the directions of the Hon'ble Court. 8.4 Placing further emphasis on page 4 of the Hon'ble High Court's order, on behalf of Revenue, ld. DR submitted that "appeals" of Revenue were before the Tribunal which was allowed by Tribunal for which Hon'ble High Court entertained appeal of respondent. Even in the said page, while the matter received consideration of the Hon'ble High Court, it has been categorically recorded by the Hon'ble court that the Respondents before the Tribunal were "Appellants" before the Hon'ble Court. Relying on the following part of the Hon'ble Court's order, ld. DR submitted that the reason of remand by Hon'ble Court was to consider merit of each case by Tribunal without going into the maintainability aspect not directed by Hon'ble High Court:: "From what we have indicated above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect....
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.... statutes ignoring the context in which such terms and expressions are used in the respective statue. Therefore all Misc. Applications of Respondents are liable to be dismissed. Apex Court in Para 9 of the decision reported in 2001 (133) ELT 257 (SC), has laid down the law that remand does not enlarge scope of consideration beyond direction. 8.7 Shri Pathak, ld. DP, on behalf of Revenue emphasized that Section 129D of the Act has mandate that satisfaction of the Committee as to prejudice caused to Revenue by the order sought to be appealed is requirement of law to entertain appeal of Revenue by Tribunal. That being requirement of law, Hon'ble High Court has not found fault with the satisfaction of the committee directing a subordinate officer to file appeal on the points referred by the committee before Tribunal for its decision on merits of each appeal without going into the manner of taking decision by the Committee of Chief Commissioners. Decision of the Committee required under law is to be understood by a totality of reading of the order of the committee showing its satisfaction for seeking appeal remedy by Revenue. Mere absence of words "neither legal nor proper" in th....
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....ocedural law to examine the orders sought to be appealed whether has prejudiced Revenue and appeal should be preferred thereon before Tribunal. Accordingly Revenue should not be denied appeal remedy by misconstruction of law as suggested by respondents. When the Adjudicating Authority in the present case, ignoring preponderance of probability and weighty evidence available on record, has failed to do justice to Revenue, prejudice was caused to it by his decision. Accordingly appeals of Revenue deserve consideration following direction of Hon'ble High Court. 8.11 It was further emphasized by learned JCDR that Revenue came in appeal before Tribunal in this batch of appeal due to no legal and proper order passed by learned Adjudicating Authority in respect of present respondents. Tribunal is expected to consider the anxiety expressed by the Committee against adjudication in different paragraphs of the order. That self speaks that the order appealed was "neither legal nor proper" in so far as these respondents are concerned. The Committee required filing of applications in each case which were treated as appeal by Tribunal. A fair reading of the order of the Committee of Chief C....
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....ds as under SECTION 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority (b) an order passed by the Commissioner (Appeals) under section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day : Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goo....
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....ll state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Customs who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct the proper officer to appeal to the Appellate Tribunal against such order. Explanation.-For the purposes of this sub-section, "jurisdictional Chief Commissioner" means the Chief Commissioner of Customs having jurisdiction over the adjudicating authority in the matter. (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs, or as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against ....
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....by the adjudicating Commissioner or Commissioner (Appeals) is neither legal nor proper. If it is not satisfied, it ascertains such point or points on which decision of Tribunal is desired. The said section reads as under:- SECTION 129D. Powers of Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders - (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order. Provided that where the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the Commissioner of Customs, it shall state the point or points on which it differs and make a r....
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.... seek appeal against the point or points arising out of an order of a Commissioner considered neither legal nor proper, for determination of such point or points by Tribunal. The authority so vested on the Committee is to avoid filing of frivolous or unnecessary appeals by Revenue and no process of law is abused. In short, if an order passed by an adjudicating Commissioner or Commissioner (A) is contrary to law, appeal there on is filed by Revenue upon direction by the Committee. 10.6 There being only remedy of appeal prescribed by law against an order passed by adjudicating Commissioner or Commissioner (A), no other authority below Tribunal is vested with the power of review or revision of the order appealed to Tribunal. Accordingly, exercise of Review power by the Committee of Chief Commissioner u/s 129D of the Act is inconceivable. Submission of the Respondent that the order passed by the Committee of Chief Commissioners was in exercise of power of review by that Committee is baseless and devoid of merit. When no power of Review is exercisable by the Committee, it is not expected that the Committee is required to examine the order appealed with the characteristics of legal an....
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....the Act to admit a revision empowering the High Court to pass such order in relation thereto as it may deem fit. The High Court was required to interfere with the order in revision if it finds that the order of the appellate authority suffer from a material impropriety or illegality. From the use of the expression "legality or propriety of such order or proceedings" occurring in sub-section(6) of Section 15 of the Act, the revisional power of the High Court under that Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognized principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That be....
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....Dyeing (supra). Reliance placed by Respondent in the case of B. Arun Kumar & Co. v. Collector of Customs 1996 (84) ELT 34 (Tri) also is of no avail since that was on a different set of facts and on the question whether Board has passed order to seek appeal on extraneous or additional material. Respondent therefore fails on all counts of his objection and the Misc. Application being mis-conceived is dismissed. CUSTOMS APPEAL NO. C/63/ SUBMISSIONS OF REVENUE 12.1 It was submitted on behalf of Revenue that the respondent Shri Vinod Kumar (Kain) was brought to charge for the loss of duty caused by him on 10.07.2000, 20.07.2000 and 01.08.2000. Entire charge was also substantiated by cogent evidence proving abatement made by the respondent to clear the smuggled goods. His statement recorded on 12.02.2001 brought out his active role being in shift duty with Shri RN Zutshi on different dates including 10.07.2000. Shri Zutshi has categorically named this respondent in his statement dated 17.01.2001. He stated that this respondent was in conversation with Protocol Officers and Superintendents for clearance of the smuggled goods by the smuggling racket. He was a negotiator of the ill....
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.... deserves to be set aside and penalty imposed on him. FINDING AND DECISION BY TRIBUNAL 15. Heard both side extensively on different occasions and perused the record. 16. Shri Zutshi in his statement dated 17.01.2001 stated that this respondent is one of the officers of preventive, who was negotiating with Mr. Mamoor Khan, and was settling the illegal gratifications payable in consideration of the clearance of smuggled goods. He was negotiator during April to July, 2000 and also during rotation from July, 2000 onwards (refer page 43 of O-I-O). 60% of the collected gratifications used to go to preventive staff and rest of the amounts were distributed among baggage officers. 17. The respondent in his statement dated 12.02.2001 stated that from 09.07.1999 to November, 2000, he worked in IGI airport as Air Customs Officer. He was in baggage section as well as preventive, courier and adjudication section. He confirmed his residential telephone number to be 6132115 and ruled out use of mobile phone. He also stated that he did not know Ms. Olga and her party. But, he described the nature of goods brought by the offender passengers to India. This shows his concern over the smugg....
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....ut to be false. 21. Respondent Officer was posted in Airport for the period as aforesaid. His conversation with Mamoor Khan and Ms. Olga could not be ruled out by him. His conscious and deliberate involvement in contacting the offender passengers and the smuggling racket using the offending phones was proved and his concern with smuggled goods was not ruled out. He made all evasive pleas only to escape charge while cogent evidence gathered by investigation brought him to the charge under law. He could not dissociate his close association with the conduits of smuggling for clearance of the offending goods on different dates directly and indirectly. In absence of any cogent and credible evidence to discard allegations of investigation, Respondent submitted himself to the commission and omissions under law. 22. Sri Ajay Dhiman, Traffic Supervisor of Kyrgyzstan Airlines stated in the statement recorded u/s 108 of the Act that Mamoor mentioned to him during November -December 1999 that "shift ki guarantee par hee mall mangwatahoon and Assistance Commissioner Gupta ki shift bahut kharabhi aur Sharma Superintendent, Bajaj aur Reddy ki shat achhi hai". This dearly proved who were con....
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....failed to bring the smuggling activity to the notice of higher authority. Smuggling perpetuated due to his deliberate silence. His role in facilitating clearance of smuggled gods from Airport without payment of customs duty and proper adjudication proved his concern with the smuggling of the offending goods and his intimacy with other members of the racket could not be ruled out as is revealed from the evidence recorded in Para 4 aforesaid and that remained un-rebutted. 28. While learned adjudicating authority used telephonic contacts, preponderance of probability as well as materiality of governing facts and attendant circumstances as guiding factors to hold many customs officers guilt, he exonerated this respondent Officer from charge for no rhyme or reason. He failed to appreciate that equal law applies equally and unequal law applies equally and telephonic contacts made by the respondent Officer brought him to the grave of the charge like other officers who were penalized in adjudication by such evidence. 29. It has been held by Hon'ble High Court of Delhi in the case of Rajiv Kumar Sharma v. CCE 2012 (276) ELT 321 (DEL) that when the reason why telephonic conversatio....
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....nt giving evasive reply to investigation to mislead them. 31. The Respondent Officer was made charge free in adjudication on the ground that he was not in touch with Mamoor Khan and Dil Agha by cell phone. This is faulty. Shri R.N. Zutshi made investigation story believable and successful with full trail of evidence without any delink. Respondent was co-sharer of bribe money as per testimony of Shri Zutshi and others. He did not abstain him self from the ill gain but became beneficiary thereof along with other Respondent Officers. It was baseless conclusion of the learned Adjudicating Authority that mere contact with Ms. Olga was not sufficient evidence to penalize the Respondent Officer. The Authority also held that although certain contacts were made by the Officers with Ms. Olga on certain dates, on those dates, she was not the passenger bringing the smuggled goods. Such conclusion is of no avail when she was an offender passenger and leader of her party bringing offending goods along with other offending passengers and was in touch with the respondent Officers for illegal clearance of illicit imports backed by illegal gratification. Settlement terms stated by Shri Zutshi in ....
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....Customs. Echoing evidence in para-4 on record established live link and intimate connection of the Respondent with the smuggling racket. When respondent Officer was guilty and failed to prove his innocence the adjudication inference drawn in favor of the Respondent Officer is contrary to law. 34. Preponderance of probability and testimony of Sri Zutshi vividly explaining the modus operandi of smuggling and abetment by the respondent officer, brought him to the fold of law. But learned adjudicating authority brushed aside the same drawing misplaced sympathy. 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". 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 n....
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....l designed act, it is normally hardship for Revenue to unravel every link of the process. Revenue successfully corroborated mala fide of respondent when material facts relating to the ill design remained in the special or peculiar knowledge of the respondent officer. 38. When fraud surfaces, that unravels all. Revenue's stand is fortified from the Apex Court judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. 1996 (86) E.L.T. 460 (S.C.). So also fraud nullifies everything as held by Apex Court in Commissioner of Customs v. Candid Enterprises 2001 (130) E.L.T. 404 (SC) and in the case of Delhi Development Authority v. Skipper Construction Company (P) Ltd AIR 1996 (SC) 2005. Escapement of offending goods from notice of Revenue was result of fraud by this Respondent against Revenue. The frauds committed by the perpetrators of the offence were in close connivance with the batch of Customs Officers with whom Respondent was associated. The Apex Court in the case of S.P. Chengalavaraya Naidu v. Jagannath AIR 1994 SC 853 and in the case of Ram Preeti Yadav v. UP Board of High School and Intermediate Education AIR 2003 SC 4268 has held that no court in this land will allow a per....
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....o the law of however high a degree of solemnity. 42. Evidence gathered by investigation unerringly proved that the respondent officer was a member of the abetting team of respondent officers and perpetuated smuggling. It is established principle of law that fraud and justice are sworn enemies. A person acting in defiance of law and without being vigilant has no right to claim innocence when he did not abstain himself from wrong doing against Revenue and caused prejudice to it. Accordingly conclusion of the learned Adjudicating Authority in favor of the Respondent officer is detrimental to the interest of justice. 43. There were cogent evidence gathered by investigation to appreciate malafide of the respondent Officer being in association with the smuggling racket and being familiar with the offending goods. Thus the Respondent cannot be made charge free when he had pecuniary interest in the smuggling which was not ruled out by him. That was proved from credible statements of Abdul Qahar, Wali and DilAgha as well as Sri Zutshi recorded by investigation discovering motive and truth of the deals. Their statements remained un-assailed. Respondent being posted at airport which is ....
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....s Appeals prepared by my learned brother. Since I do not agree with the conclusions arrived by him, I am recording a separate order. 2. These appeals have been heard for de-novo decision in pursuance of the directions of Hon'ble Delhi High Court in its judgment dt. 23.05.11 in respect of Customs Appeal No. 11 & 13 to 25/2011 filed by the Respondents. Hon'ble High Court while remanding 14 appeals filed by the Revenue to the Tribunal for de-novo decision has given the following directions:- "From what we have indicated above and going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each of these officers. It was for this reason that cases of all 22 Customs Officers were taken up and dealt with separately with reference to specific evidence which were put against each of these officers by the Adjudicating Authority. However, the CESTAT went ahead with the presumption that role of each officer was common, similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the ....
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.... Kozireva, Ms J-Nazira, Ms Kshakista, Ms A-Shahlo, Ms Merkulova and Ms Valichinco, while coming to Delhi from Uzbekistan by Kyrgyzstan Airlines were bringing huge quantity of Chinese Silk which was being cleared from the Customs without payment of Custom Duty and this smuggling was being organized by some Afghan Nationals namely Sh. Mamoor Khan, Sh. Dil Agha, Sh. Sanak Khan, Sh. Sadullah and Zanjir Khan who are alleged to be in connivance with some Customs Officers posted at the Airport namely Sh. Sudhir Sharma, Ajay Yadav, Sh. Yash pal, Sh. T.R.K. Reddy, Sh. R.N. Jutshi, Sh. V.K. Khurana, Sh. Pradeep Rana, Sh. Anil Madan, Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh. Yashvir Singh, Sh. Kanwal Suman, Sh. S.D. Rajpal, Sh. S.A. Lamb and Sh. V.K. Bhardwaj. Besides this, there is also allegation of connivance of Sh. Mamoor Khan and Sh. Dila Agha and their associates with the officials of Kyrgyzstan Airlines. The next category of persons involved in this case are the Traders namely:- Sh. Mahendra Jain, Sh. Anudeep Singh, Sh, Gopal Dokania, Sh. Anup Singh, Sh. Nitin Ku....
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.... sharing with Sh. A.K. Varshney to the mobile No. 9811135921 of Sh. Mamoor Khan of about two minutes duration. Name by Sh. R.N. Zutshi - Preventive Officer in his statement recorded by DRI Officers wherein Sh. Zutshi has alleged that Sh. V.S. Teotia used to negotiate with Sh. Mamoor Khan regarding the money to be charged for facilitating the illicit clearance of the goods brought by Uzbek lady passenger. Sh. Praveen Teotia, Preventive Officer, posted last week of June 1998 to 5lh July 2000. 27.02.2000 17.04.2000 (Mobile) 9810041291 NIL Same as above Sh. J.A. Khan Baggage Officer 27.02.2000 17.04.2000 NIL NIL Same as above Sh. Vinod Kumar Kain - Preventive Officer, posted from 09.07.97 to Nov.'2000 15.05.2000 24.07.2000 01.08.2000 NIL NIL Same as above Sh. R.K. Dacolia -ProtocolOfficer, May'98 to Sept.'2000 15.05.2000 10.07.2000 NIL NIL Same as above Sh. A.K. Varshney -Protocol Officer, Posted from 25.06.98 to 05.07.2000 15.05.2000 10.07.2000 (Land Line) - 6984235 A telephonic call on09.05.2000 from landline phone to mobile no. 9811135921. Same as above Sh. D. S. Nandal -Superintendent 15....
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....llegality or impropriety and such points of illegality or impropriety are mentioned by the Reviewing Authority in the order issued under section 129D(1) for decision by the Tribunal, in the Order under section 129D(1) passed by the Committee of Chief Commissioners the points on which the Commissioner's order in respect of the Respondents is illegal or improper are not mentioned and hence these appeals by the Revenue are not maintainable. The Respondent citing the judgment of the Apex Court in the case of Laxman Dass v. Santosh Singh [1995] 4 SCC (201) pleaded that the appeal filed by the Revenue under section 129D(4) read with section 129D(1) and 129D(2) are in the nature of revision application whose scope is different from appeals filed under section 129A(1) of the Custom Act, 1962 and while an appeal filed under section 129A(1) is continuation of the original proceedings and the Appellate Authority re-evaluate the evidence and reexamine the points of law and can pass any order confirming, modifying or setting aside the findings of the Lower Authority in revision or Review proceedings, the Reviewing Authority/Revisionary Authority should not normally interfere with the findin....
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....ered as revision application and that since an appeal is a continuation of the original proceedings wherein the entire proceedings are again left upon for consideration by the Appellate Authority which has the power to review the entire evidence subject to the prescribed statutory limitations, the plea of the respondents that in this group of appeals filed by the Revenue, the findings of the Original Adjudicating Authority based on his assessment of evidence cannot be interfered with, is not acceptable. He has also observed that:- (a) The committee of Chief Commissioners referred to in 129D(1) is only an administrative set up without any judicial power conferred on it by Law and its authority is confined to issue administrative directions to subordinate authority to seek appeal on the point or points arising out of an order of a commissioner on- which the Commissioner's decision is considered not legal or proper, for correct determination of such point or points by the Tribunal. (b) The Authority so vested on the Committee is to avoid filing of frivolous or un-necessary appeals by the Revenue; (c) The Committee of Chief Commissioner does not exercise ....
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....#39;s order is not legal or proper and the Committee or as the case may be, the Board, has directed the Commissioner by an order specifying the points on which his order is considered to be not legal and proper, for filing an application to the Tribunal for correct determination of those points. In terms of the Provisions of Section 129D(4), this application filed by the Commissioner before the Tribunal is to be treated as if it were an appeal against the Commissioner's Order and since the Appeal has been filed only for correct determination of the point or points, as mentioned in the order passed by the Committee of Chief Commissioners/Board, in respect of which, the Commissioner decision, in the opinion of the Committee/ Board is not legal or proper, the scope of appeal which is to be decided by the Tribunal is confined only to the points of illegality or impropriety mentioned in the order passed by the Committee of Chief Commissioners/Board under section 129D(1). Thus the scope of the Revenue's appeal before the Tribunal filed under section 129A(2) or under section 129D(4) read with Section 129D(1) is confined only to the points of material illegality or impropriety in t....
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.... of Customs (Appeals) or Committee of Chief Commissioner/Board in respect of an order passed by Commissioner of Customs as an Adjudicating Authority takes a view which is different from the view taken by the Commissioner (Appeals) or the Commissioner of Customs, the Committee of Commissioners/Jurisdictional Chief Commissioner or Committee of Chief Commissioners/Board cannot seek review of the order of Commissioner(appeals) or Commissioner of Customs by the way of appeal under section 129 A(2) or Section 129D(4) read with section 129D(1), if the decision of the Commissioner (Appeals) or Commissioner of Customs represents a plausible view based on the factual matrix of the case and the statutory provisions. For example, an order passed by a Commissioner dropping the duty demand and penal proceedings against an assessee relying upon the judgment of a High Court, cannot be said to be suffering from illegality or impropriety and cannot be challenged by the Revenue before the Tribunal by filing application under section 129D(4) read with Section 129D(1) just because the High Court's order relied upon by the Commissioner has been challenged before the Apex Court and the Department'....
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.... correctly or properly and accordingly the Apex Court has held that when a limitation period is prescribed in Section 35E(3) for exercise of this power, the same is to be exercised by the designated officer within that limitation period. However, main observation of the Apex Court in this judgment is that the power under section 35E(1) of the Central Excise Act 1944 (which in pari materia with the provisions of Section 129D(1) of the Customs Act, 1962) is a power of superintendence conferred on superior authority to ensure that subordinate officers exercise their power under the act correctly or properly. Since exercise of power under section 129D(1) is confined only to the cases where the Commissioner's order suffers from patent and material illegality or impropriety i.e. perversity to be corrected in the interests of justice, and this power is not to be exercised just because the Committee/Board has a different view in the matter and for this reason is aggrieved by the order passed by the Commissioner, the scope of appeal filed under section 129D(4) before the Tribunal, will be confined only to the points of patent and material illegality of impropriety in the commissioner....
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....ermination of the points in respect of which, according to the Committee, the Commissioner's decision is not legal and proper, and such application is treated as an appeal' filed by the Commissioner before the Tribunal, the appeal filed under section 129D(4) read with section 129D(1) is basically a revision proceeding on the application of Revenue, whose scope is confined only to the points of material illegality or impropriety mentioned in the order passed by the Committee of Chief Commissioner under section 129D(1). The illegality and impropriety, as mentioned above, is the order of the Commissioner being patently contrary to the Provisions of the Law or being in gross valuation of the principles of natural justice or having been passed outside the jurisdiction or by ignoring the points of fact or the points of Law placed on record by either side or the fine or penalty imposed being grossly disproportionate to the nature and gravity of the offence, or in other words, the order passed by the Commissioner suffers from perversity. Only in such a situation, the Tribunal can interfere with the Commissioner's order on the point on which his decision is perverse and which ha....
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.... review on the basis of evidence on record for confiscation of the goods under section 111(f) of the Act and for imposition of penalty on all the above mentioned four individuals, 15 Custom Officers and Kyrgyzstan Airlines under section 112 of the Act. The Committee hereby authorizes to Sh. M.D. Singh Commissioner of Customs, Import & General, new Customs House, New Delhi to file appeal before the CESTAT". As mentioned above, nowhere in the order passed by the Committee under section 129D(1) directing the Commissioner to file appeal to Tribunal for imposition of penalty on certain noticees including the 14 Custom Officers mentioned above (Respondents) who had been exonerated by the Commissioner, there is any findings by the Committee that the adjudicating commissioner's order with regard to these 14 Customs Officers is not legal and proper and why. The order under the heading "statement of Facts" gives the facts of the case and the details of the Commissioner's order and under the heading "grounds of application/appeal" simply discusses evidence on record against each of the 14 Customs Officers along with its view that the evidence on record proves the involveme....
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....tion of abetment of smuggling and on the basis of which, according, to the Committee of Chief Commissioners, there is a case for imposition of penalty on them under section 112 of Customs Act, 1962, in respect of seven officers namely Sh. V.S. Teotia - Preventive Officer (accused for abetment of smuggling on 27.02.2000, 17.04.2000, 15.05.2000, 10.07.2000), Sh. Praveen Teotia - Preventive Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. J.A. Khan (Preventive/ Baggage Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. Vinod Kumar Kain - Preventive Officer (accused for abetment of smuggling on 15.05.2000, 24.07.2000 and 01.08.2000), Sh. R.K. Dacolia - Protocol Officer (accused for abetment of smuggling on 15.05.2000 and 10.07.2000), Sh. A.K. Varshney-Protocol Officer (accused for abetment of smuggling on 15.05.2000 and 10.07.2000) and Sh. D.S. Nandal - Superintendent (accused for abetment of smuggling on 15.05.2000, 10.07.2000), the evidence relied upon by the Department is the statement of Sh. R.N. Zutshi (Preventive Officer) stating that these officers used to be in touch with Sh. Mamoor Khan negotiate with him for the payment ....
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....y the Department that on 09.05.2000, there was a call from the landline telephone installed at their temporary residence to the mobile no. 981113591 of Sh. Mamoor Khan for 2 minutes and 4 seconds. When the landline telephone was installed at the temporary residence of these officers which they were using on sharing basis, and it is not known as to who made this call on 09.05.2000 to Sh. Mamoor Khan, it cannot be presumed that this call was made by both of these officers when no inquiry has been conducted as to whether this residence was being shared by other persons also. Moreover merely from the record of this call, it cannot be inferred that the conversation was for facilitating smuggling activities of the Uzbek lady passenger. In fact in view of these circumstances only, the Commissioner had decided not to imposed penalty on these officers and in my view the Commissioner's decision in this regard cannot be said to be illegal or improper. 8. Sh. Neeraj Kumar - Preventive Officer (accused of abetting smuggling on 22.05.2000 and 01.07.2000) was exonerated by Commissioner on the grounds that:- (a) He has not been named by the Sh. R.N. Zutshi or any other person as th....
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.... of the respondent with Mamoor Khan and one telephonic contact with the passenger Ms Shahlo. 9.1 The defence of officer is that he during the period of dispute, he was trying to develop Sh. Mamoor Khan as an informer and for this reason only he was making frequent calls to him. While the Commissioner has doubted this explanation of Sh. Kamal Bajaj, he has decided not to impose any penalty on him on the ground that while the telephonic contacts of this officer with Sh. Mamoor Khan and the lady passenger and the statement of Sh. Ajay Dhiman of Kyrgyzstan Airlines give rise to a suspicion about this officer, the same do not establish preponderance of probability in support of the allegation of abetment of smuggling against him. 9.2 As regards the statement of Ajay Dhiman stating that he had heard Mamoor Khan saying that shift of Sh. Kamal Bajaj is very good, the same is hearsay evidence, as no enquiry has been conducted with Sh. Mamoor Khan. Therefore the statement of Sh. Ajay Dhiman implicating Sh. Kamal Bajaj being hearsay evidence is not of any evidentiary value, more so, when no inquiry in this regard had been made with Sh. Mamoor Khan and he is not available for examination....
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....s in the smuggling activities. For these reasons only the Commissioner in the impugned order has exonerated of these officers, holding that merely on the basis of telephonic contacts it cannot be concluded that these officers were involved in facilitating illicit import of Chinese Silk by the Uzbek lady passengers. In view of this I hold that the Commissioner's Order exonerating these officers cannot said to be illegal or improper or in other words perverse, so as to warrant interference by the Tribunal. 11. As regard Sh. Kamal Suman, Inspector/Protocol Officer alleged to have abetted smuggling on 24.07.2000 and 01.08.2000, the evidence relied upon by the Department in support of this allegation is statement of Sh. R.N. Zutshi alleging that he used to negotiate with Sh. Mamoor Khan and Dil Agha for payment to the customs for facilitating smuggling and also one telephonic contact each from his mobile number with Mamoor Khan and Ms Olgha Kozireva. The Commissioner observing that this evidence is not sufficient to establish preponderance probability in support of the allegation against him, has decided not to impose penalty on him. 11.1 As regards the statement of Sh. R.N. Z....
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.... such appeal can go into all the points relating to various aspects of the case raised in the appeal of Revenue without confining its jurisdiction only to examine whether the illegality or impropriety of the order appealed was examined by the committee? (2) Whether an application filed by a Commissioner under section 129D(4) in pursuance of an order passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the order of the Commissioner. (3) Whether on the basis of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them can be said to be suffering from illegality or impropriety and accordingly the Revenue's appeal are to be allowed'; Or Whether on the basis of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them are legal and proper and accordingly the Revenue's appeal are to be rejected. Per S.Kaur The following Difference of Opinion has been referred to me:- (1) Whether an application filed by the Revenue under section 129D(4)....
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....Para containing charges against the respondents and that the entire Show Cause Notice has to be taken into account to decide the matter of imposition of penalty on the respondents. (v) The Commissioner failed to examine and discuss as to why and how the respondents provided no answers to various questions, why necessary pre-requisites of accountal for adjudication of such large quantities of Chinese silk such as (i) checking of actual quantity of imported goods (ii) checking of record of previous visits by the same passenger, (iii) previous imposition of fine and penalty earlier (iv) checking of passengers' passports, (v) checking of baggage tags of passengers and cross checking with the manifest filed by the airlines and (vi) checking of flight boarding passes of passengers who came with the offending goods, were not fulfilled. (vi) The respondents did not act in a prudent manner in the given circumstances. (vii) Commissioner had not taken into account the totality of the circumstances and several vital points linking each of the 14 respondents were ignored. (viii) Holistic appreciation of events and charges has been done by the Hon'ble ....
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....8)] and Shri Ram v. State of U.P. [1975 (3) SCC 485 & 498] with regard to the scope these words. (xv) When fraud surfaces that unravels all; Revenue cited judgment of Hon'ble Supreme Court in the case of Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) ELT 460 (SC)] in this regard. (xvi) Also, ld. Departmental Representative states that fraud nullifies everything. He cited the judgment of Hon'ble Supreme Court in the case of Commissioner of Customs v. Candid Enterprises [2001 (130) ELT 404 (SC)]. (xvii) Revenue cited the judgments in the cases of SP Chengalavaraya Naidu v. Jagannath [AIR 1994 SC (853)] and Ram Preeti Yadav v. UP Board of High School and Intermediate Education [AIR 2003 SC 4268] to advance the proposition that no court will allow a person to keep an advantage which has been obtained by fraud. (xviii) Ld. Departmental Representative dwelled upon the term "fraud", "collusion" which vitiate even the most solemn proceedings in any civilized system of jurisprudence. He cited the judgment in the case of Derry v. Peek [1886-90 (ALL) ER 1)] wherein it was held that fraud is proved when it is shown that a false representation....
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....ointed day, under section 130, as it stood immediately before that day: [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to- (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made thereunder: Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of ....
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.... Commissioner of Customs or Commissioner of Customs] is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order. 005D (2) The [Principal Commissioner of Customs or Commissioner of Customs] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct [such authority or any officer of Customs subordinate to him] to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Principal Commissioner of Customs or Commissioner of Customs] in his order. [(3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.] [Provided that....
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....mmissioner as may be specified by the Committee of Chief Commissioners in its order. 6. As regards point No.3 of the difference of opinion, at the very outset, it is pertinent to state that the Tribunal while passing the order giving rise to the difference of opinion with regard to penalties on the respondents, acted in pursuance of the observations of the Hon'ble Delhi High Court which in its order dated 23.05.2011 observed as under:- "From what we have discussed above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are....
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....hakista K Kamal Bajaj, Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 27-2-00 HY151 26159 17,78,785- 10,88,616 Olga K and Shakista K Mamoor.Klldll, TRK Reddy, VK. Khurana, Ajay yadav, V.S Teotla, ParveenTeotla J.A. Khan, Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania.Sanjiv Jain, Mahender Jain, Anudeep Singh 10-4-00 K2 545 20696 14,07,355- 8,61,301 Shalo A MamoorKhan, Sanak SudhirSharma, Yashpal, Olga K.notpassenger but atairport. Whenflight arrived. NitishKedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-4-00 HY421 2129 1,44,752 88,583 Olga K Mamoor Khan, TRKReddy, VK Khurana, Ajay Yadav VS Teotla, Parveen Teot la, JA Khan. Nitish Kedia, Anup Singh, Khem Singh.ArunDokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 23-4-2000 HY 433 3046 2472 3565 2,07,138 1,68,100 2,42,386 1,26,768 1,02,877 1,48,340 Olga K, Nazira I and Shalo A Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, M....
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....2000 PK 270 2467 5991 1,67,742 4,07,374 1,02,658 2,49,313 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, V K Khurana Nitish Kedia, Anup Singh,Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain,M ahender Jain, Anudeep Singh 31-7-2000 K-2 545 26194 17,81,219- 10,90,106 Olga K Dil Agha.MamoorKhan, Sadullah.ZanjirKhan , VK Khurana NitishKedia, Anup Singh, Khem Singh, Arun Dokania.GopalD okania.Sanjiv Jain, Mahender Jain. Anudeep Singh 1-8-2000 PK270 5419 5638 3,68,519 3,83,411 2,25,534 2,34,648 Olga K Nazira I Dil Agha.MamoorKhan, Sadullah.ZanjirKhan , RNZutshi VK Khurana* Anil Madan "putupadjudicationp apers VinodKumar(Kain), KanwalSuman, Nitish Kedia, Anup Singh,Khem Singh, ArunDokania.GopalD okania.Sanjiv Jain, Mahender Jain, Anudeep Singh 4-8-2000 PK270 3934 6040 3,35,485 4,10,744 2,05,317-2,51,376 Olga K Nazira I Dil Agha.MamoorKhan, Sadullah, ZanjirKhan VK Khurana, SDRaJp al* NitishKedia, Anup bmgh, Khem Singh, Arun Do-kania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 'comes for night duty and has contacts with OK still at a'port and Shri Dinesh Agarwal Director.....
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....case of Jai Narain Verma v. Collector of Customs [1995 (76) ELT 421 (Tri.)], the Larger Bench of CESTAT held that the statement of co-accused cannot be relied upon to implicate the appellant unless there was corroborative evidence and imposition of penalty on the appellant would not be justified. As regards the telephonic contacts, in the case of Arvind Kumar Jain v. State of Rajasthan [2015 CRI.L.J. 2908], the Rajasthan High Court held that "in the absence of contents of conversation, mere call records cannot bring complexities of accused in crime and unless phone calls are deciphered into conversation, it cannot be relied upon. Phone call between two persons does not create any suspicion". Thus observing, the Rajasthan High Court quashed even the framing of charges. In the case of Kalyanasundaram v. Inspector of Police [MANU/TN/1363/2014], the Madras High Court observed that talking to each other over phone cannot prove anything beyond that much. 9. In the case of Kamal Bajaj, Revenue relied upon the statement of Shri Ajay Dhiman, Supervisor in Kyrgyzstan Airlines stating that he had heard Shri Mamoor Khan saying that the shift of Shri Kamal Bajaj was very good and also on the....
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.... duration on 09.05.2000 from the land line phone installed at the common residential premises shared by these respondents. There is neither any allegation nor any evidence that these officers had checked the baggage of the lady passengers on the dates mentioned above and had permitted the clearance of their baggage without payment of duty. Shri R.N. Zutshi who in his statement had implicated these seven respondents, subsequently retracted his statement. Thus, as has been analysed and brought out in Para 8 above, these are totally inadequate to sustain the charge of abetment even on the basis of preponderance of probability even with due regard to the observations in Para 24 of the judgment of Hon'ble Supreme Court in the case of Dr. NG Dastane v. Mrs. S. Dastane [1975 (2) SCC 326], wherein it is elucidated as to how to arrive at whether the case on the principles of preponderance probability is made. 12. Coming to Shri Neeraj Kumar, I find that he has not been named by Shri R.N. Zutshi or any other person with regard to abetment of smuggling. The only basis on which Revenue has imposed penalty on him is that there were 25 telephone contacts between him through his mobile num....
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....st them. As regards the telephone contacts, they have pleaded that sometimes they used to get telephone calls, which they answered and sometimes when telephone calls were missed, they used to call back not knowing who had called. Even at the cost of repetition, I may state that as has been brought out, the only evidence against the respondents are third party statement(s) and details of telephonic contacts (without transcript or details of conversation) and in the wake of the jurisprudence and judicial precedents discussed and analysed in Para 8 earlier, these are insufficient to sustain charges of abetment even on the principle of preponderance of probability. Therefore, it is not necessary for me to discuss in greater detail the contentions and arguments put forth by the respondents in their defence. 16. I have perused the judgments cited by ld. Departmental Representative with regard to preponderance probability and the scope of the words "connivance", "collusion", "fraud", "conspiracy" and "abetment" and I am of the view that notwithstanding of all these judgments, the aforesaid analysis remains valid. In other words, none of the judgments cited by ld. Departmental Represent....