Custom, Excise & Service Tax Tribunal
Jagdish V. Gursahani vs Mumbai on 14 February, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/570/2009
[Arising out of Order-in-Original CAO No: 45/2009/CAC/CC/KS dated09/03/2009 passed by the Commissioner of Customs (Adjudication), Mumbai.]
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.R. Chandrasekharan, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Jagdish V. Gursahani
Appellant
Vs
Commissioner of Customs (Adjudication)
Mumbai
Respondent
Appearance:
Shri Ashok Singhal, Advocate for the appellant Shri A.K. Prabhakar, Superintendent (AR) for the respondent CORAM:
Honble Shri Ashok Jindal, Member (Judicial) Honble Shri P.R. Chandrasekharan, Member (Technical) Date of decision: 14/02/2012 ORDER NO: ____________________________ Per: Ashok Jindal:
This is the second round of litigation. In the earlier round of litigation, this Tribunal has observed as under:
13. In the course of the arguments, the appellant has categorically contended that the toilet was not visible from outside the building, and it was not possible for the panchas and the officers to see the appellant running towards it from outside. From the impugned order, it is seen that the statement of the appellant is recorded in the presence of the panchas as per the discussion about the panchnama and its contents. The material witness in support of the case of the department is evidence of JA Saldana, who has recorded the statement, and seen the drawing of the panchnama, and the main person incharge of the investigation. NT More, the security guard in the aircraft is also a material witness in this case regarding the presence of the appellant after his duty hours for the purpose of entering aircraft and bringing, the gold from the aircraft. These witnesses throw light on all the possible doubts urged by the appellant to show the improbability of the case. The admission of the appellant coupled with the retracted statement of Abdul Nasir Khan require corroboration from the above witnesses to establish the charges against the appellant. The contention of the appellant now is the uniform pant alleged to have been worn by him was not at all seized and he was in civil dress and civil dress pant was seized. He has even challenged the department that he is prepared to accept the impugned order if it is demonstrated that 14 kgs. Of gold can be kept in the pant pocket and any ordinary man can run with it. But the department has not responded to it. To overcome these defects, it is necessary to cross examine the panchas, and JA Saldana, and also to examine NT More the security guard of the aircraft. So under these circumstances, the matter requires to be romance to the adjudicating authority. The point raised is answered in the positive. Hence we pass the following order. and, thereafter, passed the following order.
14. For the reasons discussed above the appeal is allowed and the impugned order is set aside. The matter is remanded back to the adjudicating authority to permit the cross examination of the panchas Ganbir Singh and SV Pansare, and Asst. Director JE Saldana, and LD Panda, IO author of the panchnama and to permit the defence evidence of NT More security guard of aircraft VT EFJ. The necessary process may be issued to these persons for the cross examination of the panchas and the DRI officers and for the evidence of the defence witness. Process should be issued afresh is the Aircraft authorities to produce relevant log book, as per the letter of their solicitors and advocates dated 1.10.90. After the conclusion of the same, both the sides may be given an opportunity to submit their case. Thereafter adjudicating authority should proceed for adjudicating afresh. All these requirements should be completed within a reasonable time as the event has taken place in 1990, and the appellant is facing departmental proceeding and the prosecution.
2. The adjudicating authority has observed as under:
33. . This office wrote to Air India authorities to provide log book as it was CESTATs direction in its order dated 01.02.2001. The Sr. Manager, Engg Admn. of Air India vide letter dated 16.11.2007 informed that the air craft bearing registration No. VT-EFJ (MSN 21446) was sold to Triton Aviation Services Ltd. a foreign agency on Feb. 1988. In this context, even ADG, DRI was requested to supply the log book as it was directed by the CESTAT. However, there was no response. Further, it is not the case of the Department or Investigation to call for the Log book as it was not a relied upon document as per the SCN. I find that it was not necessary on the part of the Department to provide the copy or inspection of the same. Moreover, if it was so much required, the noticee could have obtained a copy of the same from their own end and provided the same in their defence during cross examination / personal hearing, specially when Shri Jagdish Vishnu Gursahani is an employee of Air India. In as much as the Department has never relied on the log book in the SCN, there was no obligation for the Department to provide the same. It is pertinent to mention here that Smt. Aisha Zubair Ansari, the learned Advocate in her written submission dated 27.01.2009 has submitted that on or about 20.04.1989 staff notice no. 3/89-90 was issued to Air India Staff by Air India in which it was brought to the notice of the staff that many cases of smuggling have been noticed by the different investigating authority which shows the involvement of Air India employees. It was in a meeting held on 23.11.1989, decided by Air India that a register would be maintained in which name, staff number and designation of the staff entering Air craft would be recorded in the register including the time in and out and accordingly a notice was issued to on 19.12.1989; that a similar notice was issued by her clients Engineering department, Air India dated 21.12.1989. But nowhere Smt. Aisha Zubair Ansari admits that her client Jagdish Vishnu Gursahani has signed the register i.e. log book on 06.02.1990. When such being the position, simply asking for the register will not arrive at any conclusion, but leads others into astray as in the present case. In as much as the SCN has not relied on the log book, the adjudicating Authority can not rely on the same as the log book is not a statutory document. Consequently, the learned advocates reliance on the log book has no evidentiary value.
3. He further observed that:
34. Smt. Aisha Zubair Ansari, learned Advocate relied upon Honble Supreme Courts decision in C.K. Thakker and D.K. Jain JJ in 2008 CRI L.J. 3944 wherein it was held that Lackadaisical manner of investigation spread over a period of four years - valuable constitutional right of appellant to a speedy investigation and trial infringed criminal proceedings initiated against him are liable to be quashed. In the instant case, from 2007 February onwards although cross examination/personal hearings have been fixed on various dates, the learned advocate Smt. Aisha Zubair Ansari took a plea that until and unless the log book is provided to her client, no cross examination could be conducted. Although cross examination of the four persons namely Shri Ganbhir Singh, S. V. Pansare, L.D. Panda and JEA Saldanha was granted on 11.06.2008, 01.12.2008, 23.12.2008 and 21.01.2009 respectively no witnesses appeared for cross examination. Despite granting four opportunities of cross examination, witnesses did not turn up. As already discussed supra that the log book is not with the Department and the Department has never relied on it in the SCN, it is not obligatory on the part of the department to provide the same. Meanwhile the learned Advocate and her client also have not made any attempt to obtain the log book instead of merely relying on it and prolonging the issued unnecessarily and deliberately. Considering the facts and circumstances of the case, it is apparent that there is no intentional delay form the Department side in deciding the case and hence the case law cited by the learned advocate is not relevant to the present case.
35. As observed by the CESTAT in its order dated 01.02.2001 at para 13 that the main person incharge of the investigation was Shri JEA. Saldanha and material witness was Shri N. T. More. However, both these persons could not be cross examined as they did not turn up on the dates of cross examination.
4. It was further observed that the appellant was involved in the activity of smuggling of gold and, thereafter imposed penalty on the appellant.
5. Heard both the sides.
6. We have gone through the order passed by this Tribunal in the earlier round of litigation on 01/02/2001 and thereafter the remand proceedings took place only in 2007 which shows that the departmental officers are not taking keen interest in the remanded matters. We further observe that the order passed by this Tribunal dated 01/02/2001 was not challenged by either side, resulting in the order attaining finality. Therefore, the observation of the adjudicating authority recorded in paragraph 33 are highly objectionable and not tenable or sustainable in the eyes of law. Further, we also observe that the witnesses who were called for cross-examination are the departmental officers and who did not turn up for cross-examination and the adjudicating authority held that those persons did not turn up for cross-examination on the date fixed for cross-examination. We have seen that the witnesses have appeared before the trial court in the prosecution proceedings but did not appear before the adjudicating authority. The adjudicating authority has not exercised his powers in accordance with law to call the witnesses. Therefore, we hold that the impugned proceedings are in violation of the directions given by this Tribunal vide order dated 01/02/2001.
7. In the interest of justice, we are of the opinion that the matter should go back to the adjudicating authority to follow the directions given by this Tribunal on 1st February, 2001 to adjudicate the case and to pass an order in compliance with the direction given by this Tribunal vide order dated 01/02/2001 within 90 days of the receipt of this order with a direction to the appellant that the appellant shall appear before the adjudicating authority as and when called for.
8. The impugned order is set aside in view of the above directions and remand the matter back to the adjudicating authority as directed above. The appeal is disposed of accordingly.
(Operative part pronounced in Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) */as 8