Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs-Ii vs Raj Kumar Madan on 17 June, 1997
Equivalent citations: 2000(119)ELT463(TRI-DEL)
ORDER A.C.C. Unni, Member (J)
1. This is a Departmental appeal against the order of Collector (Appeals) dated 30-12-1994 by which the Collector (Appeals) set aside the order in original passed by the Dy. Collector imposing a personal penalty of Rs. 1,00,000/- on the present respondent apart from confiscating a truck and ball bearings and compressors.
2. Appearing for the Department Shri Satnam Singh, SDR contended that there was enough evidence against the present respondent linking him with the illegal import of ball bearings and compressors of foreign origin valued at Rs. 9,83,750/- and 3,80,000/- which had been marked "Made in Japan" and again 'Kathmandu via Calcutta' which were packed in gunny bags/Cardboard boxes and transported to Delhi in a truck from the Nepal Border. These were seized by the Officers of Customs on 11-1-1993 New Delhi. The statement of the driver of the truck, Yasin and the other two occupants of the truck, Rajinder Sharma and Pawan Kumar clearly implicated the involvement of the respondent in the smuggling into India of the above goods. Pursuant to adjudication proceedings the Dy. Collector in his Order-in-Original dated 17-9-1994 had ordered the absolute confiscation of the truck carrying the goods as well as the goods and imposed a personal penalty on the present respondent as well as on three others. SDR strongly relied on the statements of Yasin, Driver of the truck, Pawan Kumar and Rajinder Sharma who were occupants of the truck at the time of the seizure in which they had stated that they had been specifically told by one Shri Ashok Kumar of Khatima that the goods loaded on the truck and received by them on 11-1-1993 near Khatima (which is a place just 10 to 12 kms. from Nepal border should be concealed in a specially made cavity behind the driver's cabin of the truck and should be taken to Delhi where he would be met by one Mr. Raj Kumar at the Grand Trunk Road in Maruti Car No. DNH 1062 at a spot between Meerut and Ghaziabad. According to SDR, it was not in dispute that the present respondent, Shri Raj Kumar Madan had met the truck between Meerut and Ghaziabad and he had waived to the truck to stop and disclosed his name as Raj Kumar. It was also not in dispute that he was travelling in Maruti No. DNH 1062. The present Respondent had also then asked the driver of the truck and other occupants to deliver the ball bearings and compressors at a particular address given by him. Further inquiries made by the Customs authorities revealed that the present respondent R.K. Madan had admitted that he was the owner of Maruti Car No. DNH 1062 and his statement that he had sold the said car to one Ashok Kumar of Rajouri Garden was false. It is also not in dispute according to SDR that the residential premises of R.K. Madan was located by Customs officials on the basis of information given by Shri Pawan Kumar, one of the occupants of the truck. All these facts, apart from the statements given by the driver and occupants of the truck which brought the smuggled goods from Indo-Nepal border clearly established the involvement of Shri Raj Kumar Madan, the Respondent herein. Having regard to these facts the ld. SDR contended that the Collector (Appeals) had erred in holding that the present Respondent had no link with the alleged smuggling of the goods.
3. Ld. Advocate for the appellants Shri R.L. Behl strongly opposed the appeal and contended that the Department had relied entirely on assumptions and conjecture in making allegations against the present Respondent and that there was no proof about any link between the smuggled goods and the Respondent. He pleaded for the upholding of the impugned order and dismissal of the departmental appeal. Further, he relied on the Tribunal decision in Collector of Customs v. Asiatic Oxygen Ltd. to contend that in terms of Section 129A(2) of the Customs Act, the Collector should have clearly recorded his satisfaction to the effect that the order of the Collector (Appeals) under Section 128 was not legal or proper before directing the proper officer to file an appeal on his behalf to the Appellate Tribunal. He referred to the Memo of Appeal filed by the Collector of Customs which contained no averment to the effect that the order of the appellate Collector under Section 128 was not legal or proper. Neither did it contain any direction to the Appellate Tribunal against such order. He further stated that the Respondent's request for cross-examination of the persons whose statements had been relied on by the Department had not been allowed nor had time for replying to the show cause notice granted to the Respondent. He relied on the Tribunal decision in Trilochan Singh v. CCE reported in 1995 (75) E.L.T. 294 in support of his contention.
4. We have considered the submissions.
5. On the point raised by the Advocate for the Respondent that the requirement of Section 129A(2) has not been satisfied in the present application, we find that the Memo of Appeal filed by the Collector of Customs on 4-4-1995 before the Tribunal contains, (i) an affidavit sworn by the Collector, (ii) a Memo of Appeal (iii) an application for setting aside the order passed by the Collector (Appeals) Customs dated 30-12-1994 and (iv) a statement of facts of the case with the Grounds of Appeal at the end. The Grounds of Appeal contains a prayer for setting aside the order of the Collector (Appeals) and restoration of the Order-in-Original or in the alternative the remand of the case of de novo adjudication.
6. On the question of recording of the satisfaction of Collector before filing Section 129A(2) of the Customs Act, 1962 provides as under; "(2) The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood before the appointed day, or by the Collector (Appeals) under Section 128A, is not legal or proper, direct the proper Officer to appeal on his behalf to the Appellate Tribunal against such order" It is seen that in present case the Collector of Customs has himself filed the appeal before this Tribunal. Since the Collector himself has filed the appeal, Sub-section (2) of Section 129A does not appear to be attracted which will apply only when he directs proper officer to file the appeal on his behalf. In view of this, we do not find any substance in the point raised by the Respondent's Counsel.
7. Respondents' main submission on the merit is that the involvement of the present Respondent has not been proved by independent evidence. We find that the Collector (Appeals) in the impugned order has discussed the statements given by the driver and the occupants of the truck which had been relied on by the Dy. Collector in the order in original. We find that the the observation of the Collector (Appeals) to the effect that the statement of Yasin, driver of the truck is not sustainable as being that of a co-accused, is not correct in view of the Supreme Court decision in K.I. Pavunny v. Asstt. Collector, Cochin, 1997 (90) E.L.T. 241 in which the Apex Court had held that though a person summoned under Section 108 of the Customs Act was not a "person accused of an offence" for purposes of Section 24 of the Evidence Act till a complaint under Section 135 was filed against him, a confessional statement of an accused, if voluntary, could form the sole basis for conviction. Further Collector (Appeals) had found that the statement of Pawan Kumar that R.K. Madan had met him "at about 6.30 p.m." at Meerut was not reliable since it was on record that he reached Mohan Nagar at 7.00 p.m. which is about 50 kms from Meerut. The Collector (Appeals) had found that the Dy. Collector had not given due consideration to this aspect in the order in original. The ld. SDR had contended before us that Pawan Kumar's statement that the respondent had met him at Meerut at 'about 6.30 p.m.' should be taken only as giving the approximate time of the meeting and too much should not be read into this statement as regards the exact time of the meeting. We are inclined to agree with the submission of the SDR on this point as the thrust of the statement appears to be the meeting and not the exact timing of meeting. Another factor on which the Collector (Appeals) had found the statement of Yasin not plausible was regarding the instruction given to him by Shri Ashok Kumar at Khatima that Raj Kumar would meet him 10 to 12 days later near Delhi. Though it is an admitted fact that Yasin had never met Raj Kumar before, the Collector (Appeals) had found that it had not been explained as to how Yasin could have recognised Raj Kumar and delivered the smuggled goods to him straightaway without verifying the identity of the person who stopped the truck. We find from the statement of Pawan Kumar quoted in the SCN that it was Raj Kumar who had gestured to the truck between Meerut and Ghaziabad. Since the spot at which the truck was gestured to be stopped corresponded to the instruction given to him at Khatima there was enough justification for Yasin to respond. We also find that in the written submissions given by the Advocate for the Respondent and also the submissions made before us, the fact of the Respondent meeting the truck carrying the smuggled goods has not been denied. However, it is also true that on searches conducted at the residence of Respondent on 25-6-1993 nothing incriminating had been found. Further, though the statement given by Raj Kumar Madan and his wife Indu Madan on 25-6-1993 had been found to be unreliable, we find that the inconsistencies relate not to the allegation of involvement in the smuggling of the goods but to matters relating to the ownership of Car No. DNH 1062 or their actual residence or other matters which do not have a direct bearing on the allegation of involvement in smuggling. While the statements given by Yasin and Pawan Kumar relied on by the Department no doubt are self-inculpatory, their statements involving the Respondent do not, in the absence of any corroborative material, go to the extent of showing that the smuggled goods actually belonged to him or that he was engaged in smuggling activity. The Department has not in our view been able to bring any independent corroborative material to show that he had a definite role in the smuggling of the impugned goods warranting imposition of penalty. In the facts of the case we feel that the Respondent is entitled to benefit of doubt.
8. In the premises we do not feel any interference is warranted. We therefore uphold the impugned order and dismiss the Departmental appeal.