Custom, Excise & Service Tax Tribunal
Paresh B. Nanda vs Commissioner Of Customs (Prev), Mumbai on 5 March, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/1005, 1006/04
(Arising out Order-in-Original No. CCP/KPM/ADJN/R&I/13/ 2004 dated 09.09.2004 passed by the Commissioner of Customs (Prev), Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Paresh B. Nanda
Appellant
Vs.
Commissioner of Customs (Prev), Mumbai
Respondent
Appearance:
Shri Mihir Deshmukh, Advocate for the appellant Ms. D.M. Durando, Dy. Comm(AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 09.02.2012 Date of decision : 05.03.2012 O R D E R No:..
These appeals have come up before me in second round as in earlier round vide order no. A/165-167/10/CSTB/C-II dated 20.5.10 this Tribunal has confirmed the impugned orders and dismissed the appeal of the appellant. The said order was challenged by the appellant before the Hon'ble High Court of Bombay and Hon'ble High Court vide order dated 08.09.2010 remanded the matter back to the Tribunal with certain directions to the appellant. Therefore this matter is before me. On perusal of the records, it is found that the appellant has complied with the directions of the Hon'ble High Court for hearing these appeals. Therefore, I have taken up the appeal for hearing.
2. The brief facts of the case are that on an information that the large quantities of foreign made ball bearings, cassettes, textiles, table clocks, pharmaceutical torches and other electronic goods are being smuggled into India through Indo-Nepal border and brought to Purna village and Rehnal village, Bhiwandi, in trucks for storage and further disposal in Mumbai. The officers of the DRI were keeping surveillance on a godown situated at C-6, Mayashree Compound, Purna village, Bhiwandi. The said godown was opened in the presence of panchas and local police on 26.8.1999 and recovered 280 packages in gunny clothes with markings. It was found that these were containing ball bearings, textile, chemicals and alarm clocks of foreign origin. Thereafter panchanama was drawn and the goods were seized and taken in the custody and shifted to customs warehouse situated at Sewri. Detailed inventory was prepared. During the course of investigation in the case of seizure of smuggled goods from a truck no. MP 09 KA2322 at Purna village and Ambica storage godown, Bhiwandi, statements of Shri Ram Saware Yadav who was running M/s Ambica Storage godown was recorded who stated that Shri Suresh Mange used to keep goods of foreign origin in his godown, He knew Shri Suresh Mange for last 2-3 months who is residing at Ghatkopar, Mumbai and his telephone no. is 5150181. Thereafter residential premises of Shri Suresh Mange was searched and his statement was recorded. During the course of his statement, Shri Suresh Mange stated that appellant informed him the two truck nos. MP 09 KA 2322 and PB 10 G 9193 loaded with goods and parked at Priti Petrol Pump were to be off-loaded and accordingly he directed truck no. MP 09 KA2322 to go to Veera compound and he took the other truck and off-loaded in his godown. When he reached, he came to know that the customs officer has intercepted the truck no. MP 09 KA2322 and that he immediately turned back and informed the appellant about the incident and that appellant came to Bhiwandi on 26.8.1999 and met him and the appellant paid Rs.25000/- and directed him to abscond; that he went to Ahmedabad and returned on 18.9.1999 as he was running short of money and met the appellant who paid another Rs.25000/-; that appellant residence telephone no. 5163917 and 5103607 and mobile no. 9821137113 and stays at Nandadevi Bldg., Ghatkopar, Mumbai. The appellant used to deal with goods of foreign origin; that truck loaded with these goods were never used to accompany any legal documents; that he did not know the owner of the goods; he only knew the appellant and he had no. 9821217146. On the basis of the statement of Shri Suresh Mange, investigations were going on, the appellant moved an application for anticipatory bail in Sessions court on 26.11.1999. The anticipatory bail application was rejected. The appellant moved to the Hon'ble High Court wherein also the application was rejected. Thereafter, the appellant surrendered before DRI on 17.12.1999. His statement was also recoded and on the basis of statement of the appellant and co-accused, Shri Suresh Mange the case was booked and two show-cause notices was issued wherein the penalty of Rs. 5 lakhs in each matter has been confirmed against the appellant. Therefore, appellant is before me.
3. Shri Mihir Deshmukh, ld. advocate for the appellant submitted that the penalty has been imposed on the appellant merely on the statement of co-accused Shri Suresh Mange and no other corroborative evidence has been brought on record. The statement of appellant recorded during the course of investigation was retracted by the appellant on first available opportunity and appellant was not allowed to cross examine Shri Suresh Mange who has given inculpatory statement against the appellant. Therefore, impugned order is in gross violation of principles of natural justice. Moreover, without any corroborative evidence, the penalties imposed on the appellant are not justified. He further submitted that the penalty on the appellant has been imposed under Section 112 of the Customs Act, 1962 as no particular clause was mentioned in show-cause notice or in the impugned order. Therefore, penalty is not imposable on the appellant as held by the Hon'ble Apex Court in Amrit Foods vs. CCE 2005 (190) ELT 433(SC). He also relied on Swadesh Polytex Ltd. vs. CCE 2000 (122) ELT 641(SC) wherein it was held that opportunity should be given to cross examine the witness whose statement the Collector intend to rely. He also relied on Mohtesham Mohd. Ismail 2009 (13) STR 433 (SC) wherein the Hon'ble Apex Court held that confession of co-accused cannot be treated as substantive evidence. Confessions acceptable only if voluntarily purported to have been made before an authority requires closer scrutiny and court must seek corroboration of purported confession from independent sources. He also relied on Arif Shaikh vs. CC 2011 (272) ELT 596 wherein this Tribunal has held that retracted confession statement including that obtained in mahazar proceedings cannot be relied upon in the absence of corroboratory evidence. In alternate, he submitted the penalties imposed on the appellant are highly excessive.
4. On the other hand, ld. DR strongly opposed the contention of the ld. advocate and submitted that the appellant played a serious role in smuggled goods in question and the statement of co-accused was recorded under Section 108 of the Customs Act which is highly incriminating for the appellant. As per the DRI, the goods seized from various godowns have been deposited at the appellants instance and he was aware of the smuggled nature of goods and he arranged for storage and delivery of goods for monitory consideration. The appellant were known that the goods are coming from Nepal without payment of customs duty and the appellant is directed to Shri Suresh Mange to abscond on payment of Rs.25000/- and again Rs.25000/-. He further submitted that as per the criminal proceedings also the bail application of the appellant was also rejected by the Hon'ble High Court. Thereafter the appellant surrendered to the DRI, who was produced before the Additional Chief Metropolitan Magistrate and remanded to judicial custody. The appellant had also remanded under COFE POSA detention also. Although the appellant has retracted the statement given before the DRI and before the Additional Chief Magistrate but that allegation was denied by the department in the court itself. As appellant has admitted in the statement recorded before DRI that he was the master mind in the illegal importation of the impugned goods. Therefore adjudicating authority has rightly imposed the penalty on the appellant under Section 112 of the Customs Act, 1962.
5. Heard both sides.
6. I have gone through submissions of both sides, and found that in this case the penalty on the appellant has been imposed by investigating the matter forwarded by the authorities. I do not agree with the contention of the ld. advocate that penalty on the appellant has been imposed under Section 112 of the Customs Act as no particular clause was mentioned in the order. In fact I have gone through the show-cause notice and in show-cause notice the proposal has been made to impose penalty under Section 112(a) or 112(b) of the Customs Act, 1962. Therefore, the contention raised by the ld. counsel is not sustainable and the case law relied upon by the advocate is distinguishable.
7. Further, he has contended that he is not given an opportunity to cross examine the witness but further observed that the appellant has gone through the criminal proceedings and appellant has also gone under COFE POSA detention. It is also evident from the appellants statement that he was associated with the importation, transportation and storage of the goods although the said statement has been retracted before the Chief Metropolitan Magistrate but he was not able to establish before the adjudicating authority that these statements has been taken from him under threat. It is no doubt that the act of the appellant has made liable goods for confiscation. In these circumstances, and considering the fact of the case as peculiar one, the penalty is imposable on the appellant. However, as contended by the ld. advocate that the penalty is highly excessive, therefore, I reduce the penalty to Rs. 1 lakh each.
8. In view of these observations, appeals are disposed of.
(Pronounced in Court on .) (Ashok Jindal) Member (Judicial) SR 8