TaxTMI 
TaxTMI 
2017 (7) TMI 882
X X X X Extracts X X X X
X X X X Extracts X X X X
....oner was one of the persons, to whom, such gold bars were sold on earlier occasions. The said Thameem Ansari and Rehaman had retracted from their original statements. Pursuant to the search and seizure conducted on 29.04.2014, no action was taken either to summon the petitioner or to search his residential business premises. However, on 12.09.2014, the DRI conducted a search and seizure at the petitioner's business place resulting the recovery of 2.830 kilograms of katcha gold and Indian currency notes of Rs. 44,37,000/-. They were seized under a mahazar on a reasonable belief that the same was smuggled and the Indian currency seized were sale proceeds of contraband. The petitioner has resciled from his statement and has clearly stated that the same was forced and coerced out of him by exercise of threat and unlawful methods. Two show cause notices were issued, out of which, the present writ petition is concerned with the one dated 25.10.2014. In the said show cause of notice, the proposal is for confiscation of the gold bar seized from Thameem Ansari and for imposing penalties against the said persons and others including the petitioner. It is alleged in the show cause notice ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wever, he was supplied with the documents requested by him. The petitioner had played a commercial role in dealing with the smuggled gold bars with full knowledge that they are of smuggled in nature. Therefore, for the said acts of omission and commission, he was liable for penal action under Section 112(b)(1) of the Customs Act,1962. The principles of natural justice have been duly followed during the course of adjudication. The Adjudicating Authority thoroughly discussed the material evidences available in the case and also the crucial part played by the petitioner. The two show cause notices issued to the petitioner deals with the different issues and the respective cases are dealt with separately. The present writ petition is not maintainable since the petitioner is at liberty to file an appeal under Section 129(A)(1) of the Customs Act,1962 before CESTAT, Chennai. 4. Mr.B.Kumar, learned senior counsel appearing for the petitioner submitted as follows: The impugned order imposing penalty on the petitioner is based on the search and recovery of 33.3499 kgs of gold from one Thameem Ansari and admittedly, the petitioner was not the recipient of such gold. For imposing of penalty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent/ adjudicating authority has passed a detailed order after thoroughly discussing the facts, circumstances, the position of law and the nature of punishment to be imposed on the parties concerned. Though the said order-in-original was passed against three other persons, namely, one Thameem Ansari, Syed Rehman and Haji Kaka, thereby confiscating 33.3499 kg of seized foreign marked gold bars and Indian currency of Rs. 1,83,000/- and imposing penalty of Rs. 2 crores each on Thameem Ansari and Syed Rehman and imposing penalty of Rs. 4 crores on Haji Kaka, they are not before this Court and the writ petitioner alone has approached this Court and filed the present writ petition challenging the imposition of penalty of Rs. 2 crores. There is no dispute to the legal position that as against the impugned order-in-original, a statutory appellate remedy is available to the petitioner before the Customs, Excise and Service Tax Appellate Tribunal, Chennai. It is also well settled that in fiscal matters, filing of writ petition cannot be entertained or encouraged against the order passed by the Adjudicating Authority, unless the very jurisdiction of the said authority is questioned or that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....round 10 kg of smuggled gold bars (each time) from one Shri Al Ameen in Manady, Chennai; that then on April 20th, they received around 22 kg of smuggled gold bars form a person, as told by Shri Haji Kaka; that he didn't remember the details of the said person; that similarly, they have received around 20 kg of smuggled gold bars each on 25th and 26th April; that then on 28th April, they received around 17010.520 gm of smuggled gold bars from Shri Al Ameen, as per the instructions of Shri Haji Kaka. These admissions are duly corroborated by the messages recovered from the mobile phone of Shri Rehman wherein details of quantity of previous smuggled gold bars are mentioned. Similarly, cell tower locations and call detail records also indicate that Shri Rehman has previously received smuggled gld bars. Going by their own admissions, it appears that they would have approximately dealt with 99 kg of smuggled gold bars in the past. Considering the average price of 24 ct gold bars at Chennai during the said period as Rs. 2950 per gram, the estimated value of the entire gold bars smuggled and sold by these people (which could not be seized) would be of the order of Rs. 29.2 crores. It i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng of a another order-in-original No.45934/2016 dated 09.03.2016 confiscating the seized gold and currency and imposing penalty of Rs. 30 lakhs on petitioner under Section 112(b) of the Customs Act,1962. It is not in dispute that the above said order is challenged by the petitioner by way of an appeal before the Appellate Tribunal. Though the present impugned proceedings is in relation with the search and recovery of 33.3499 kgs of gold from the said Thameem Ansari, it is seen that the parties have given their respective statement with regard to the earlier transactions made between them, in which, the approximate quantum and value of the smuggled gold bars have also been stated, as discussed in the show cause notice at paragraph No.29. The Adjudicating Authority, after discussing the facts and circumstances has arrived at the conclusion that the petitioner is liable to pay a sum of Rs. 2 crores as penalty under Section 112(b)(1) of the Customs Act,1962. No doubt, the learned senior counsel pointed out that such quantum of penalty arrived at by the Adjudicating Authority is bereft of material details and particulars. I do not think that such lapse, even assuming to be, would amount....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sal to cross examine those two persons, namely, Thameem Ansari and Syed Rehman has resulted in violation of principles of natural justice. I do not think that the petitioner is justified in raising such objection now, especially, when the order passed by the Adjudicating Authority on 30.11.2015 denying the request of the petitioner to cross examine those two person, has not been challenged by the petitioner and on the other hand, by accepting the said order, the petitioner appeared further and filed additional written submissions, as required under the said order dated 30.11.2015. Even otherwise, the Adjudicating Authority has dealt with in detail as to why such request is rejected by relying on certain case laws. In any event, as the Appellate Authority is also a fact finding authority, certainly, the petitioner is entitled to canvass before such authority as to how such denial of cross examination of those two persons, has resulted in affecting his interest. If the request for cross examination was not at all considered, then it is a different matter to say that there is a violation of principles of natural justice. On the other hand, if such request is considered and rejected on....