Customs, Excise and Gold Tribunal - Tamil Nadu
Ravindra Mangesh Bijoor vs Collector Of Customs on 5 August, 1992
Equivalent citations: 1992(40)ECC374
ORDER
V.P. Gulati, Member
1. This appeal is against the order of the Additional Collector of Customs, Visakhapatnam. The proceedings were initiated against appellant and others consequent on the recovery of video cassette recorders and video cassette players, textiles, wrist watches, liquor, cameras and video audio cassette tapes of c.i.f. value of Rs. 38,75,961.25 and market value of Rs. 1,19,46,677.00. The goods were found kept undeclared and concealed in various places in the ship M.V. SAMRAT ASHOK. Statements were recorded from the appellant, who was the captain of the vessel. The appellant in his statement of 9-7-1986 admitted to having given to Utility Steward, Shri Chandrasekharan, Rs. 1,42,800 and 6800 Singapore dollars for purchasing 40 video cassette recorders and also for having given Rs. 16,000 to one Shri Narayanan, Steward, to purchase 4 video recorders and Rs. 26,000 to Shri Subhan, P.O.M., for purchase of 6 video cassette recorders. He was confronted by Shri Chandrasekharan, Shri Subhan and Shri Narayanan and by the Investigating officers and they confirmed the fact of having given money by the appellant for purchase of video cassette recorders. He also admitted to having seen the crew members having gone ashore, bringing foreign goods and putting the same into 4 upper ballast tanks and he did not question them for what they were doing and also that he did not fill up ballast tanks with water because they contained foreign goods. He also admitted to have brought the goods with intention to sell them to fishermen on reaching India and that he had not declared them and had kept them concealed in the wing tanks. In his further statement of 11-7-1986 he deposed that the Indian currency of Rs. 1,82,800 and Singapore dollars 6,800 were his own money out of his savings and he had not entered the same in the official records. Statements were also recorded from the said Shri C. Narayanan, Shri Subhan, P.O.M., Shri Abdul Aziz, 2nd Officer, Shri Sunil Kumar Prasad, 3rd Officer, and others. Further investigation was also done in regard to who was to be the recipient of the goods on shore. Taking into account the evidence on record, the learned lower authority ordered the confiscation of the seized goods and a penalty of Rs. 2,00,000 was imposed on the appellant under Section 112(b)(i) of the Customs Act and Rs. 50,000 under Section 114(1) of the Customs Act, 1962. A fine of Rs. 1,00,000 was also levied in lieu of confiscation of the vessel which had earlier been ordered to be released under the orders of the Hon'ble Andhra Pradesh High Court. The appellant is in appeal before us against the levy of penalty on him.
2. The appellant had also moved a Miscellaneous Application for taking on record the statements of two persons which were recorded by not (sic) made available to the appellant and which the appellant stated that he came know of them from the paper book filed by the Department in the court in connection with the prosecution of the appellant. We permitted the appellant's advocate to refer to these statements for the purpose of his defence and to make any pleas in regard to the same.
3. The learned Advocate for the appellant at the outset pleaded that there had been denial of the principles of natural justice inasmuch as the appellant had asked for the cross-examination of 14 persons and the authority had allowed the cross-examination only seven of those persons. He pleaded the other persons were not allowed as they were stated to be not available. The learned DR for the Department, Shri Jayaseelan, at this stage stated that the Department will not rely on the statements of the said 7 persons not made available and stated that the Tribunal may decide the matter taking into consideration the other evidence on record. The learned advocate arguing on merits pleaded that the grounds on which action had been taken against the appellant were (1) facilitating smuggling, and (2) participating in the smuggling. He pleaded that the evidence cited in regard to the facilitating smuggling is that ballast tanks were deliberately kept empty so that foreign goods could be carried in the same and in this connection the evidence cited against him is that of Shri Suresh Babu and Shri Subhan, who were tank supervisors looking after the tanks. He pleaded that the learned lower authority has taken note of the statement of the Addl. Chief Officer, Shri Suresh Babu, that when he asked the Master (appellant) regarding the ballasting tank No.4 top side tank, he (appellant) stated not to ballast. The learned Advocate pleaded that before coming to any conclusion the learned lower authority should have gone into the fact as to whether the tank was kept empty deliberately or there was a technical requirement for the same. He pleaded that it could be seen from the statement of Shri Suresh Babu, the Addl. Chief Officer, that the captain (appellant) had asked him not to ballast as they would be going to OB-II berth of Visakhapatnam harbour. He pleaded that this would show that the tank was to be kept empty for the reason of berthing. He pleaded that the appellant had listed the technical reasons for not ballasting during cross-examination and his instruction could not be taken to imply that the tank was to be kept empty to keep the smuggled goods and in any case the Addl, Chief Officer, Shri Suresh Babu, had not in any way stated that he understood his instruction to mean that the tank was to be kept empty to keep smuggled goods therein. He pleaded that the learned lower authority has not taken note of the learned lower authority has not taken note of the fact brought out in the cross-examination and also the plea that the tank was kept empty for the reason of berthing. He further pleaded that another circumstance from which the learned lower authority had drawn adverse inference was from the statement of Shri Abdul Aziz and Shri S.K. Prasad, 2nd Officer and 3rd Officer respectively, who had stated that the captain (appellant) had asked them to reduce the speed to facilitate the landing of the goods. The inference is that this adjustment of speed was done deliberately. The learned Advocate pleaded that the appellant had sought for cross-examination of these officers, but they were not made available to elicit the fact in regard to the imputation. He pleaded that now that the Department has chosen not to rely on the statement of these officers inasmuch as they were not made available for cross-examination, no adverse inference can be drawn against the appellant in this regard. He pleaded that to check the veracity of the statement the learned lower authority should have verified the log book wherein the entries are made in regard to speed etc. among other things. He pleaded the appellant had given no such instruction. In regard to the participation of the appellant in the smuggling activity, he pleaded that the statements of Shri Subhan, Shri Subramanian and Shri Chandrasekharan that the appellant gave money to them to buy the VCRs. could not be accepted as evidence against the appellant as the first statement which was recorded from them on 6-7-86, didnt implicate the appellant and it was during the subsequent statements which were recorded on 9-7-86 and 10-7-86 Shri Chandrasekharan and Shri Subramanian have implicated the appellant. He pleaded that the third statements were also recorded from Shri Subramanian and Shri Chandrasekharan on 20-7-86 and 27-7-86, which the appellant came to know from the typed set of papers furnished to the court for launching prosecution against the appellant by the Department. These statements, he pleaded, were not given earlier and the only statements that the appellant had with him were those which were given on 6-7-86, 9-7-86 and 10-7-86. He pleaded as it is Subramanian and Chandrasekharan retracted their statements on 6-8-86 and 5-8-86. He pleaded that in the face of these retractions no reliance could be placed on the earlier statements of these persons. In regard to the statement of Shri Subramanian, the learned Advocate pleaded that the appellant had not given any money to him. Adverting to the statement of Shri Subramanian which has been held against the appellant, he pleaded that Subramanian has stated that he has received the money from the appellant for the purchase of the VCRs. The learned Advocate pleaded that Shri Subramanian was in fact acting at the behest of one Shri Palraj and was in his pay. In any case he pleaded, that Shri Subramani had on cross-examination disowned his statement and stated during cross-examination that the statement taken from him on 10-7-86 was not given by him voluntarily and it was taken by beating with iron rod and he was made to copy the dictated statement. He referred us to the record of the cross-examination in this regard filed at page 329 of the paper book. He pleaded as it is even though Subramani has stated that he had received Rs. 42,800 and Singapore dollars 6,800 from the Master (appellant) when he was called along with Shri Chandrasekharan to buy the VCRs., the VCRs are alleged to have been purchased from the appellant had not been identified and he pleaded that in the absence of any identification of property no charge could be made out against the appellant. He pleaded that as per Subramani the mark 'VB' was put on the goods belonging to Palraj who had also given money to Shri Subramani. He pleaded admittedly Shri Subramani had made purchases for Palraj so also Shri Chandrasekharan purchased VCRs for the said Shri Palraj and both of them marked the VCRs belonging to them by the letters 'BV and that so far as the appellant was concerned the alleged 400 VCRs. purchased for him bore no marks. Further, dealing with the statement given by Shri Chandrasekharan he pleaded that the cost of 4 VCRs. has been indicated at Rs. 16,000 and on that logic the value of the 40 VCRs. alleged to have been purchased for the Master (appellant) would come to Rs. 1,20,000 and pleaded the balance amount out of Rs. 1,42,800 amounting to Rs. 22,800 has not been accounted for by the parties as also not tried to find out what has happened to the balance of the money which had been given to Subramani and Chandrasekharan. By pointing out this discrepancy, he pleaded that is endeavour to show that the amount as indicated by them as having been given by the appellant was not correct and their statement regarding purchase has to be taken to be false. Dealing with the statement of Shri Subhan, one of the crew members who has also implicated the appellant, he pleaded that the first statement given on 5-7-86 did not implicate the appellant and in fact Shri Subhan has totally disowned any connection with the goods seized and it was only in the subsequent statement on 9-7-86 that Shri Subramani implicated the captain (appellant), who is alleged to have given Rs. 30,000 to buy 6 VCRs. and also money for buying one VCR for himself and he stated to have put the marking of 'AG' on the VCRs. purchased for the Master (appellant) and 2 VCRs. for himself. The learned Advocate pleaded that the statement was also recorded subsequent to 9-7-86 from Shri Subhan on 23-7-86. He pleaded these statements, as earlier mentioned by him, were not given to him and they came by these statements only in the set of papers provided at the time when the Department launched prosecution against the appellant. He pleaded that non-supply of the subsequent statements recorded has prejudiced the appellant's case. He pointed out that while the Suban had stated that they had put mark 'AG' on the VCRs. purchased for himself and the Master, in the mahazar no package with marking 'AG' has been shown to have been seized. However, in the subsequent mahazar drawn, filed at page 347 of the paper book, marked Ex. I, Shri Subhan is shown to have identified 8 VCRs. contained in 4 bags with marks 'AG(C)'. He pleaded that in the original mahazar drawn, however, no marks have been shown on the packages and the packages shown as belonging to Shri Subhan in the mahazar carried only the description of the goods seized. He pleaded that Shri Noronha in his statement has set out the part played by him in concealing the goods int he tank along with the Catering Officer. He pleaded that the appellant was in no way concerned with the concealing of the goods in the tank or having knowledge about the same. Shri Subhan, as would be seen from the statement of Shri Noronha dated 9-7-86 filed at page 141 of the paper book, Ex.B 13, is the person who persuaded others to put the things in the tank. As mentioned in the statement, that the captain (appellant) had permitted the same was not correct. Even Shri Arun Richard, the Chief Officer, has contradicted Subhan's version. He pleaded that Shri Subhan was one who was taking part in the smuggling activity and despite this the Departmental authorities had treated him very lightly and penalty of Rs. 5,000 was levied on him. He pleaded that version of Shri Subhan had been on various points contradicted by others. He pleaded that while Subhan has stated in his statement dated 23-7-86 now filed as additional evidence, the tank was opened for keeping the things at his instance by Shri Arun Richard and Shri Arun Richard had denied the same. He pleaded that in his statement dated 25-7-86 which was not supplied earlier and filed as additional evidence, Shri Subhan has clearly stated that he did not ask for permission from the Chief Officer for keeping the goods in tank No.4. He, however, has merely stated that the Chief Officer under whom he was working had asked him to open the manhole of the tank No. 4 and he was not having any knowledge that foreign goods were going to be stocked therein. He further stated that there was contradiction in the statements given by him at various times in regard to the advance taken by him. His plea is that Shri Subhan has merely acted as a prosecution witness and cannot be treated as an independent witness and his statement could not be relied upon. Adverting to the statement of the appellant, the learned Advocate for the appellant pleaded that no doubt the appellant had given an inculpatory statement admitting his role in smuggling and also regarding the purchase of the VCRs. for him, he pleaded that this statement could not be treated as voluntary statement. His plea is that the statement from the appellant was recorded 13 days after the arrival of the vessel and during which period the ship was under surveillance and so was the captain (appellant). This surveillance meant that the appellant was under restraint. He pleaded that while statements were recorded from others earlier, statement from the appellant was recorded much later and there is no reason adduced as to why this delayed recording of the statement. He pleaded that as mentioned by him the statement of Shri Chandrasekharan and Subhan could not be accepted against the appellant and if what they have stated in the earlier statement that captain gave them the money is held as not true then what has been stated by the appellant would have to be considered as false. He pleaded that as it is there is contradiction between what has been stated by Subhan and what has been stated by the appellant. He pleaded that Subhan has stated that he received Rs. 30,000 from the appellant and the appellant in his statement has stated that he gave only Rs. 24,000. He pleaded that the learned lower authority has framed the charge to hold the appellant as guilty of smuggling of all the goods found unaccounted for an board the vessel. He pleaded that this could not be done and in this connection he referred the case of Moghul Lines 1989 (45) ELT 382. He pleaded that vicarious liability also could not be there on the appellant as the appellant has recorded in his log book a warning earlier given to the crew. He pleaded that the Hon'ble Bombay High Court in a case reported in 1991 (32) ECR 413 has held that the Master of the vessel was not responsible if the crew has individually carried the goods. He pleaded for setting aside the order of the learned lower authority in view of the above, submissions.
4. The learned JDR for the Department briefly narrated the facts and pleaded that on information the vessel on its return to Vizag in ballast was escorted by the Naval vessel and search was carried out resulting in large seizure comprising 581 packages. He pleaded that contraband were discovered on 28-6-86 and investigation was carried out thereafter and as follow up action statements were recorded from various crew members at different times. He pleaded that at no point of time the appellant was put under any restraint and he was free to move around. He pleaded that he appellant had at no point of time made any complaint that his liberty has been curtailed. He pleaded that the appellant had given a detailed statement in regard to his role in the smuggling of contraband and also about the quantum which belonged to him and which stands corroborated by the statements of Chandrasekharan and Subhan. He has pleaded that it has not been probabilised that the statements had been given under coercion and threat and were not voluntary in nature. He pleaded that after the first statement was recorded from Subhan and Chandrasekharan, subsequent statements brought out the facts after they were confronted with the facts revealed by the investigation and they came out clean. He pleaded that they gave the details in regard to their role in the smuggling as also that of their captain (appellant) and others and also about their conduct on the shore. He pleaded that the appellant had not retracted his statement until he sent his reply to the show cause notice after about a year. He pleaded that this belated retraction has only to be considered as an after-thought. He pleaded that even when the appellant was in jail under COFEPOSA he had access to others and he could have come on record in case the statement was not voluntary. He pleaded that Chandrasekharan, Subhan and Subramani have clearly stated that the money had been given by the appellant to buy VCRs for him. He stated that Subhan has also stated that the speed of the vessel was adjusted to facilitate smuggling of the goods into the country and also he had asked Suresh Babu not to ballast the tank No. 4 to facilitate storage of the smuggled goods. He pleaded that though the mahazar does not give the identification marks the quantum of the goods belonging to each has been accepted. He pleaded that the Master of the vessel (i.e., the appellant) being a responsible officer was privy to a grave offence and a serious view of the same has to be taken and the penalty could not be taken to be excessive in the facts and circumstances of the case.
5. We have given a careful thought to the detailed arguments adduced by both the sides. The point that falls for consideration is whether in the light of the statements of the appellant and those of others coupled with the recovery of large quantum of contraband goods the appellant can be held to have been guilty of the violations under the Customs Act and whether he is liable to penalty. We observe that the appellant in his statement made on 9-7-86 has given details of the Indian and foreign currency given by him to Shir Chandrasekharan, Utility Steward, and to Shri Narayanan, the other Steward and Shri Subhan with instructions to buy the VCRs. the number of which also was indicated by him. He has also stated that he noticed the crew members bringing bags containing goods at Singapore when the ship was docked there for 30 hours and storing them in upper ballast tank No. 4 and he has also given the reasons for not filling the same with water because the tank contained the crew's bags with foreign goods. He has given the motive for bringing the goods for sale to the fishermen at the harbour and admitted to non-declaration of the same. He also admitted not to have made the entry of Indian currency and Singapore dollars which he carried with him for buying the VCRs. in the personal property list and admitted the same were his savings. This statement of appellant remained unretracted until the reply to the show cause notice issued, after about a year. There is no satisfactory explanation as to why, in case the statement was not voluntary as pleaded by the appellant, the appellant did not immediately retract the same, if he had given the statement under threat or coercion or due to any restraint placed on him. We observe that the Master of the vessel is a very senior officer and is expected to take care of his crew and enforce the law on board. He is expected to be aware of not only his rights and obligations but also of the implications of any statement given. The facts given by him in the statements were such as would be only in the knowledge of the appellant and there has been no complaint from the appellant that he was placed under any restraint or there was any coercion or threat used either at the time of seizure or at the time of recording the statement or thereafter. Merely because the vessel was under surveillance, as pleaded by the learned Advocate, it cannot be assumed that there was any restraint on the appellant. As pleaded by the learned JDR, the appellant was free to move around to contact anybody he wanted. As it is the statement has been recorded almost after 12 to 13 days of the docking of the vessel and there is nothing on record to show that during this period the appellant was in any way harassed by the authorities. The appellant was on board the vessel and there is no reason why he would say things which are inculpatory, if the same were not true. Nothing has been brought on record to probabilise that the statement recorded was not voluntary. The learned Advocate has tried to discredit the veracity of this statement by pointing out minor discrepancies in regard to the amount of currency stated to have been given as set out in the statements of the appellant and as that in the statement of crew members. These minor discrepancies are likely to occur whenever statements at different times are recorded and these in no way detract from the essential fact regarding the moneys having been given for the purpose of purchasing the VCRs. In the facts of this case we hold that the statement given by the appellant was voluntary in nature and the same has to be accepted as evidence for purpose of proceedings against the appellant. We observe that both Shri Subhan and Chandrasekharan have corroborated what the appellant has stated. The learned Advocate has pleaded that the statements of Shri Subhan and Shri Chandrasekharan could not be accepted in evidence for the reason that in the first statement recorded they disowned any connection with the smuggled goods and did not implicate the appellant. We observe this is a case of smuggling of large quantum of goods and in a case like this where large number of people are involved, the investigation slowly unravels the various layers of the scheme evolved by the smugglers and this is what appears to have happened in this case, when the appellant, both Shri Subhan and Shir Chandrasekharan after they were faced with the facts came out with the details about the money that they got from the appellant and also the moneys out of which they purchased the VCRs. for themselves. There is nothing on record to show that Shri Subhan, Shri Chandrasekharan and Shri Subramani and others who gave statements against the appellant implicating him in the total scheme of smuggling including the goods purchased by him had any enmity with the appellant or they were actuated by any mala fides to put the appellant on the spot. There is also nothing on record to convince us that the statements of Shri Subhan, Shri Chandrasekharan and Shri Subramani do not merit acceptance. The learned Advocate has no doubt pointed out some discrepancies in what Shri Subhan said and what Shri Noronha stated in this regard and Shri Arun Richard stated. The fact, however, from the statements emerges is that number of crew members and officers congregated and agreed to the arrangement to put the smuggled goods in the tank No. 4 and it is not possible to believe that when so many crew members were involved and got together to indulge in the nefarious activity of smuggling and were making arrangements regarding concealing of the same, that the appellant being the captain would hot have known about what was happening on the deck. We observe that Shri Arun Richard, the Chief Officer, has given a statement in the presence of his father on 3-7-86. He has stated as under:
During the current voyage we were given to understand a total understanding by the Customs have been reached by which any quantity can be brought safely to Vizag for...accordingly I invested all my amount of Rs. 45,000/- and out of which 10 V.C. R. was purchased by Sri P.M. Colaco 2nd cook on my behalf out of these I kept one in my cabin as per the personal baggage declared in the p.p. list. The balance 9 and been instructed in suitable container for disposal at Vizag. However I do not know the exact nature of the packing up the containers to identify them in the lots of VCRs. seized by Custom Officers on arrival of the ship at Vizag from No. 4 Wing Tank part and starboard of the ship.
As far as my knowledge goes excepting Shir P.M. Joshi and Shri Abdul Aziz 2nd Officer all other officers and crew members have knowledge and participation of this activities, many of us have joined the activity as out of compulsion and temptation the atmosphere on the vessel was such that it was taken for granted that no hitch will ever occur.. Planning was done to such extent that care was always taken that ship arrive at Singapore during day ... hours and arrive at Vizag only after sunset so that at anchorage point goods can be unloaded safely and without observation and interference.
He has further confirmed his role for the purchase of the VCRs. for the purpose of sale in India and the malafides of the same on 5-7-86. The appellant has not cross-examined the Chief Officer nor his father in the presence of whom the statement was recorded as to the veracity of the same. Arun Richard's father was a responsible officer and was at the relevant time functioning as Assistant Director of Horticulture, Division I, C.P.W.D., LP. Bhavan, New Delhi. Even though Shri Subhan, Shri Chandrasekharan and Arun Richard retracted their statements later it has not been probabilised by them or by the appellant that these had been given under coercion or threat. The details given were such as they were in their own knowledge and these have to be accepted as having been voluntarily given. It had been pleaded that when the property has not been marked at the time of seizure and that no identification marks were there in respect of the VCRs. alleged to have been purchased by the appellant and no action could be taken against the appellant. We observe that the appellant has admitted to having bought the VCRs. which were brought on board through the crew members, who have admitted to their role in purchasing and concealing the same and even if the property was not identified in respect of each of the persons the recovery of the total quantum has been allocated in respect of each person involved based on the evidence on record. In a case like this, therefore, it is not necessary before holding the charge against the appellant to establish that as to which VCRs. belonged to the appellant, so long as it can be shown that the number attributed to him formed part of the total of the contraband seized. In view what we have held above, the ratio of the case laws cited by the appellant is distinguishable from the facts and circumstances of this case. In view of the above we hold that the appellant has been rightly held to be liable to penalty under Section 112 and Section 114, CA.' 62 and the goods have been rightly confiscated. Taking into consideration, however, the fact that the appellant had undergone imprisonment under COFEPOSA and has also lost his job, we hold that the ends of justice will be served if the penalty levied on the appellant is reduced to Rs. 1,00,000 (Rs. One lakh) under Section 112(b)(i) of the Customs Act, 1962 and Rs. 15,000 (Rs. Fifteen thousand) under Section 114(1) of the Customs Act, 1962 and order accordingly. But for the above modifications, and appeal is otherwise dismissed.