TaxTMI 
TaxTMI 
2019 (3) TMI 257
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....sed and had arisen for consideration?" 3. The appellant was served with a Show Cause Notice [hereafter referred to as "SCN"] dated 20.05.2014, by the Directorate of Revenue Intelligence [hereafter referred to as "DRI"]. It was contended in the SCN that on 22.11.2013, at 11:30 hours the officials of the DRI, acting on intelligence, had observed three persons attempting to remove the inside pad from the door of a Mahindra Scorpio vehicle [hereafter referred to as "the said vehicle"] parked at Shroff Charitable Hospital, Delhi. It was contended that the appellant was one of these three people and that the pad of the door was being removed to retrieve a consignment of 17 gold bars of 1 kg., each from Nepal, which was concealed therein. Three other persons were seated in the said vehicle. One additional gold bar of 1 kg. was subsequently recovered from one of the seats pursuant to a statement made by one of the persons alleged to have been involved. It was further alleged that the appellant was the owner of a jewellery shop and had procured the gold from a contact in Nepal in contravention of the Act. The gold bars were stated to have been valued independently at Rs. 5,56,92,000/- and ....
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....sons of the syndicate in this case as the whole exercise of the Gold smuggling in this case was undertaken at his behest and was designed to provide huge undue monetary gains to him. He was arrested at the time the said gold was being taken out from the Scorpio vehicle along with his employee Subodh Kumar. Both of them are the receiving party of the gold consignment. 23.1 In his *reply to the Show Cause Notice and during the Personal Hearing, he submitted that he had retracted his statement before Customs under Section 108 of the Customs Act, 1962. However, his defence that he had gone to Shroff Hospital Daryaganj for taking appointment of a doctor appears to be only an afterthought. His defence of being physically handicapped person, hence incapable of such unlawful activities, is also unacceptable. 23.2 As per the voluntary statement recorded under Section 108 of the Customs Act, 1962, Shri Chander Prakash Verma had taken the delivery of smuggled Gold on previous occasions also. The willful and deliberate involvement of Chander Prakash Verma in the smuggling of Gold has rendered him liable for penalty under Section 112 of the Customs Act, 1962. 23.3 In his submissions during t....
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....e claim of the Noticee being an innocent by stander appears to be without merit. 23.7 It is very clear from the facts that the Noticee being a jeweller by profession and running a proprietary jewellery concern had hatched this plan of getting cheaper gold by way of smuggling from the Indo-Nepal border with the help of his distant relative/acquaintance in Nepal Sh. Ramuji. He was tempted by the idea of getting gold at a much lower price by evading the Customs duties which would lead to a greater profit margins in his business of selling Gold/Silver jewellery. 23.8 In fact, the Noticee had himself confessed to his part in this case of Gold smuggling in his voluntary statement given to the DRI Officers under Section 108 of the Customs Act, 1962 dated 22.11.2013, wherein he had admitted that he had fixed the date and time of taking gold delivery with his distant relative Sh. Ramuji. The said Ramuji had informed about the vehicle number carrying the gold and had told him that a person named Shankar would be coming in a white coloured Scorpio vehicle bearing Reg. No. BR-30-P-1251 and he had fixed with him the place. 23.9 Thus it is clear that the Noticee had already admitted to his ro....
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....n afterthought cannot be given any credence at all. 5.4 As regards the contention of appellant has that the impugned Order is vitiated by non-adherence to the principles of natural justice insofar as the Adjudicating Authority has not allowed cross examination of panch witnesses and other co-accused persons and appellants reliance on various judgments in support of the aforesaid contention, my considered opinion is that the factum of recovery of gold and his apprehension from the place of occurrence not being in dispute, the disallowance of cross examination is of no purpose. Otherwise also as when the co-accused persons have chosen not to participate in the adjudication proceedings or filing Appeal against the impugned Order, calling them for cross examination would have been of no consequence except for delaying the adjudication proceedings. Therefore, following* the law propounded by the Hon'ble Madras High Court in the matter of A.L. Jalaludeen- 2010 (261) ELT 84 (Mad) that principles of natural justice are not violated by now allowing the Appellant to cross examine witnesses. I hold that the arguments of Appellant that the order deserves to be quashed for having been pass....
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....he appellant. She further submits that the appellant and Subodh Kumar, an employee went to the hospital for seeking an appointment from the Doctor. Out of curiosity, they went to the parking lot where they were arrested. At the strength of the written submission ld. Counsel further submits that the impugned order is patently perverse and baseless. The penalty imposed only on the basis of the statement which was later, retracted. No corroborative evidence was found. To support her submission she relied upon the following case laws: (1) Sushil Kumar Kanodia vs. CC, Chennai- 2008 (12) STR 798 (Tri. Chennai) (2) Commissioner vs. Sushil Kumar Kanodia -2015 (319) ELT A73 (Mad) (3) Birendera Kumar Singh vs. CC, Lucvknow-2006 (198) ELT 460 (Tri.Del) (4) Ashwin S. Mehta vs. CC, Mumbai-2006 (197) ELT 386 (Tri. Mum) (5) Narayan Das vs. CC, Patna -2004 (178) ELT 554 (Tri. Kol.) (6) Shard Dugar vs. CC, ICD, ND-2003 (151) ELT 321 (Tri. Del.) (7) Narendra B. Jain vs. CC (Adj.) Mumbai-2014 (304) ELT 563 (Tri.Mum) (8) M.N. Furniture vs. CCE, Belapur-2017 (347) ELT 373 (Tri. Mum) 4. On the other hand, Shri R. K. Manjhi, Ld. AR for the Revenue supported the impugned order. He submits....
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....e, the facts and circumstances speaks itself as per the maxim RES IPSA TAX QUITER. The case law cited by the ld. Advocate for the appellant are distinguishable to the facts and are no help in the peculiar circumstances of the case. 8. Hence, in the light of above discussion and by considering the totality of facts and circumstances of the case, we find no reason to interfere with the impugned order where the penalty of Rs. 50 lakhs was rightly imposed on the appellant. In fact it is too less. So, no further relief can be provided to the appellant. Hence, we sustain the impugned order alongwith the reasons mentioned therein. 9. In the result, appeal filed by the appellant is dismissed." 8. In support of the appeal, learned counsel for the appellant argued that the reliance of the customs authorities and the Tribunal upon the retracted statement of the appellant, and the fact that he is a goldsmith, is insufficient to uphold the order or penalty. Learned counsel emphasized that follow up investigation by the DRI did not recover any incriminating evidence from the residence or shop of the appellant and that no telephonic contact between the appellant (or his employee) and the alleg....
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.... findings of the authorities that his presence was not merely coincidental, but that he was the intended recipient of the smuggled gold, cannot be faulted. 11. It is in the light of this factual situation and the detailed orders of the adjudicating authority and Commissioner (Appeals) that the consideration of the appeal by the Tribunal must be viewed. Although the Tribunal's analysis of the facts and the contentions of the parties was, in our opinion, somewhat sketchy, this is not a case of complete non-application of mind or unreasoned acceptance of the findings rendered by the authorities. The Tribunal being the final arbiter of facts, it is no doubt vested with the duty to consider the material on record independently and render its findings upon the same. It is settled law that no judgment, even one affirming orders of the authorities or courts below, can be unreasoned. However, there is no uniform standard to determine the level of detail required, so long as the rationale of the decision is clearly discernible. 12. A few decisions of the Supreme Court make this position clear. In Madhya Pradesh Industries Ltd. vs. Union of India and Ors. (1966) 1 SCR 466 at page 473 [....
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.... be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Inquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the disciplinary authority agrees with the findings of the Inquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings." xxxx xxxx xxxx xxxx "14. ......Assuming, that by necessary implication this Regulation also requires the appellate authority to give the reasons, still its order cannot be invalidated, as we find that it has discharged its obligation by considering the records and proceedings pertaining to the disciplinary action and the submissions made by Grover. In other words, the order clearly demonstrates that the appellate authority had applied its mind not only to the proceedings of the enquiry, but also the grounds raised by Grover in his appeal and on such application found that there was no substance in the appeal." The legal position was formulated in the following manner in Divisional Forest Officer, Kotha....
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....itan Magistrate dated 17.12.2013, granting bail to the appellant and other accused persons, is wholly irrelevant to the issue before us. In any event, the said order is predicated on the facts that the gold had already been recovered, that the accused were not required for further investigation and that the appellant was stated to have been orthopedically handicapped. 15. The judgment of the Gauhati High Court in Basudev Das (supra) has been cited on the question of quantum of penalty. The High Court affirmed an imposition of penalty in circumstances similar to the present case, but reduced the amount of penalty from Rs. 2 lakhs to Rs. 1.5 lakhs. Although there can be no automatic application of precedent to the issue of quantum of penalty, we also find that the factual situation in that case was significantly different from the present case, inasmuch as, the incident was of 1999 [as opposed to 2013, in the present case]; the quantity of gold was approximately 1.6 kilograms [as opposed to 18 kilograms, in the present case]; and the person concerned was found to be a petty paan shop owner, who had recently entered into smuggling to augment his meagre income [as opposed to the prese....