Custom, Excise & Service Tax Tribunal
Shri T.R.K. Reddy vs Cc, New Delhi on 11 June, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II Customs Appeal No. 4 of 2008 DATE OF HEARING : 11th June 2009. Shri T.R.K. Reddy Appellant Versus CC, New Delhi Respondent
Appearance S/Shri L.P. Asthana and Shri A. Jaju, Advocates for the appellant.
Shri Sumit Kumar, Authorized Representative (SDR) for the Respondent.
CORAM : Honble Shri D.N. Panda, Judicial Member Honble Shri Rakesh Kumar, Technical Member Order No. ________________ Dated : ,,,,,,,,,,,_____________ PROCEEDING Per. D.N. Panda :-
The appellant Shri T.R.K. Reddy represented by the learned Counsel Shri Asthana argued that on four days i.e. on 27/2/2000, 22/5/2000, 17/7/2000 and 24/7/2000, the appellant was alleged to have abetted smuggling of the relevant quantity of goods quoted in table 2 of the order-in-original which has resulted in loss of revenue. For this allegation, the appellant has faced penalty of Rs. 10,00,000/- (Rupees Ten lakhs). The findings of the learned Adjudicating Authority for all these four days appeared in page 263, 280, 287 and 288 of the order-in-original. This finding was on consideration of the evidence and reply of the appellant finding place at page 194 of the order-in-original. Table 2 deals with respective telephone calls and the quantities said to have escaped duty liability appear in page 312 of order-in-original.
2. Learned Counsel Shri Asthana submits that the adjudications made on the aforesaid four days not being reopened and that having reached finality, this appellant cannot be imputed to charges for those days when he was not dealt by order of those days. Present order-in-original passed on 27/9/07 and issued on 01/10/07 cannot hold against the Appellant. The telephone calls was only suspicious material before the authority to inculpate the Appellant without direct evidence and direct nexus or involvement of the appellant in respect of the allegations made in show cause notice. The manifest and telephone call print and documents shall not be basis to implicate the appellant which were not concerned with the event of the aforesaid dates. He also argued that this appellant cannot be penalised for no abetment of smuggling or escapement of goods from the notice of the customs. Apart from these substantial points, he adopts his same arguments that was made in respect of the point of law he had argued in the case of the appellant Shri Sudhir Sharma and Yashpal.
3. Learned DR Shri Sumit Kumar has submitted a written note showing the synopsis, evidence relied upon, evaluation of the evidence and citations relied upon and conclusions of Revenue in respect of the matter in controversy. He places the statement dated 24/1/01 recorded by the investigation which runs through page 1 to 30. He raises various questions to prove the case of the Revenue against the Appellant. He reads recorded statement of the appellant and submits as under :-
(1) Answer to question No. 1 at page 3 shows that the appellant was using the mobile phone of neighbour. The appellants statement has no credence when use of such phone was proved establishing live-link of the appellant with smuggling group. Therefore ownership of phone is irrelevant.
(2) Page 2 of the statement shows that the period involved is February 1997 to July 2000 showing involvement of the appellant with the smuggling gang and also illegal importation as well as escapement of such goods from the notice of Customs.
(3) The officer was in duty being fully aware of the customs law, baggage rules, various circulars and notifications applicable to clearance of baggage and functioning of the air customs, he cannot plead innocence.
(4) Page 3 of the statements shows that there were 153 pages of phone call that was reciprocated between the appellant and other offenders of the smuggling.
(5) Page 5 of the statement recorded shows a live-link of the appellant with Mamoor Khan having contacted him.
(6) It was surprising that soon after transfer of the appellant after 31st July there was no telephonic interaction between the appellant and the smuggling group.
(7) Answer to question 8 at page 11 of the recorded statement shows direct acquaintance, acquiescence and knowledge of the appellant to the smugglers.
(8) When the appellant was able to detect that huge quantity of goods that were frequently reaching India through the same airport by frequent travellers, he failed to bring the same to the notice of higher authorities when there were already 46 adjudications made against similar passengers in due course. The passengers appearing in answer to question No. 21 are the example. The questionable goods were dealt by counter No. 4, 5 & 6, where the appellants responsibility was to know the questionable modus operandi of the frequent travellers.
(9) Answer to question No. 8, 22, 23, 24 and 25 when read together that lead to situation to appreciate that there was nexus of the appellant with the questionable passengers as well as Mamoor Khan. Answer to question No. 11 & 12 shows perfect knowledge of the appellant as to the excess quantity being imported from time to time and frequent arrival of Olga was within his knowledge.
(10) Answer to question No. 13 admits detailed examination about the baggage, role of the officer incharge and the responsibility in air customs. In that answer, the appellant has stated that he has not checked documents of Olga on different occasions.
(11) Answer to question No. 16 shows questionable nature of the goods imported by the offenders. The said goods being illegally imported as prohibited goods under EXIM policy and when such goods were frequently reaching, the appellant kept quiet for his own advantage.
(12) Answer to question No. 18 at page 17 says that Shri Ajay Yadav and Shri Sudhir Sharma were involved in adjudication process of smuggled goods. This does not rule out role of Shri Ajay Yadav and Shri Sudhir Sharma alongwith the appellant.
(13) Answer to question No. 19 explains about variation in quantity and value thereof in different adjudication orders which were fabricated.
(14) Answer to question No. 19 and 26 when read together, involvement of the appellant in repeated calls with the offender like Mamoor Khan is established on record.
(15) The ratio of 1 Kilo = 20 Mtrs. comes out from question 26 and 28. This remained un-rebutted.
(16) Answer to question No. 29 was to misdirect the investigation.
(17) Reliance on page 31 and 32 of the statement recorded is necessary to prove that a telephone was frequently in use by this appellant without being controverted.
3.1 Learned DR relies on the facts submitted on the synopsis as well as analysis of evidence appearing in the chart filed in the course of hearing showing that Shri Dil Agha, Shri Zutshi and Shri Ajay Yadav and other two passengers who were the essential basis of evidence proved against this appellant showing his direct involvement. He has summarised various evidence in para 18 of the synopsis and evaluation thereof has also been made with cross reference to respective tables and pages of order-in-original. The various provisions of the law applicable alongwith circulars and notifications are depicted in his synopsis. So also he relies on the decisions appearing in Sl. No. 22, 24, 25, 27, 28, 29, 30 and 7 of his written submission.
4. Learned Counsel Shri Asthana in reply to the submissions of Revenue argues as under :-
(1) A senior officer like the Deputy Commissioner who was incharge of the baggage aspect has never found any complaint against any of the appellants and those appellants having worked under him without breach of law, in absence of any contrary finding, they are innocent.
(2) There was no evasion to a significant extent alleged when Deputy Commissioner was incharge of the baggage matter.
(3) Proposal made by the appellant not being found contradictory, the appellant cannot be dealt as an offender of the aforesaid four days to implicate him for penalty.
(4) In view of circumstantial of evidence and absence of manifest proof, the appellant has not endangered revenue.
(5) Post clearance events shall not implicate the appellants when there was neither live-link nor cogent evidence not brought on record to say that this appellant only made escapement of alleged quantities from the notice of the customs.
5. This proceeding has been recorded in the open court. Both parties are entitled to the copies of the same. Registry is directed to give them the copies under appropriate identification number.
This shall for part of order sheet and record.
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member (Rakesh Kumar) Technical Member PK