Customs, Excise and Gold Tribunal - Delhi
Sharad Chandra Bhandari vs Collector Of Customs on 28 September, 1990
Equivalent citations: 1991ECR474(TRI.-DELHI), 1991(53)ELT22(TRI-DEL)
ORDER S.K. Bhatnagar, Member (T)
1. This is an appeal against the order of the Additional Collector, In-dore.
2. The learned counsel stated that the appeal was filed by Shri Anil Kumar Bhandari, S/O. Shri Sharad Chandra Bhandari against whom the order-in-original was passed.
3. Shri Sharad Chandra Bhandari had filed an appeal before the Tribunal against the order-in-original and the matter was remanded by the Tribunal vide its order No. A/264/87-NRB in appeal No.C/2139/85-NRB.
Shri Sharad Chandra Bhandari expired on 3-8-1988 after the impugned order passed by way of remand had been issued but before he could file the appeal against the said order. The present appeal was, therefore, filed by his son Shri Anil Kumar Bhandari against the impugned order.
4. The Tribunal allowed Shri Anil Kumar Bhandari to be taken on record as legal representative by its order dated 7-3-90. The department has also filed a cross objection on 26-10-1988 with reference to the impugned order.
5. The learned counsel stated that in this case the Tribunal had remanded the matter with the direction to the adjudicating authority to allow reasonable opportunity to cross examine the departmental as well as panch witnesses. However, during the remand proceedings all the witnessess were not make available for cross examination. The most glaring omission was to produce the seizing officer Km. Rita Shukla and Shri Ved Prakah and Shri Ramesh Chandra Agarwal. The department has relied heavily on the statement of Shri Ved Prakash in spite of it he was not produced.
6. It was their submission that Shri Sharad Chandra Bhandari used to live with his family in a house which was in the name of Smt Krishna Devi. At the time of the visit of the officers Shri Sharad Chandra Bhandari was ill. The officers searched the premises but at first did not find anything incriminating but subsequently lady Inspector Rita Shukla discovered a bag from the bathroom and this bag contained the watches in question. That apart Indian currency of Rs. 17,055/- was also recovered from the possession of the wife of Shri Sharad Chandar Bhandari.
7. During the course of adjudication the watches were confiscated absolutely but the cash was released.
8. The matter was remanded as the principles of natural justice had not been duly observed. However, even now the most of the persons concerned have not been produced for cross examination and therefore the proceedings are defective.
9. Further, Shri Sharad Chandra Bhandari and all the members of the family had denied any knowledge of those watches and had not claimed them. The bathroom itself was so located that it was easily accessible to an outsider.
10. The appellant denies that Shri Sharad Chandra Bhandari or any other member of the family were dealing in smuggling of foreign watches or in purchase or sale thereof.
11. The learned Additional Collector has himself stated that no member of the family has come forward to own the responsibility and has in the circumstances thought it fit to fasten the liability on Shri Sharad Chandra Bhandari merely on the ground that he was the karta of the family. It was their contention that it was not proper to do so. The Additional Collector's order is based on assumption and presumption only and there was no endeavour to connect Shri Sharad Chandra Bhandari with the watches.
12. The statement of Shri Bhandari was recorded three times; the second time when he was in the hospital and the third time when he was in the Customs Custody. During the cross-examination the officer who recorded the statement in the hospital did not even remember that he had gone to the hospital to record the statement.
13. Even otherwise when a number of persons were present and were living in the house the liability cannot be fastened on the appellant merely on the ground of his being karta and in these circumstances he would like to cite the judgement of the Hon'ble Supreme Court in the case of J.A. Naidu v. State of Maharashtra reported in 1979 Cri. L.J. 962 and the Supreme Court's judgment in the case of Radha Kishan v. State of U.P. reported in AIR 1963 SC 822.
14. It was also his contention that the department cannot rely on the statement of Sh. Ved Prakash at this stage as he was not made available for cross examination in spite of a direction from the Tribunal. In any eventuality Shri Ved Prakash has also named Shri Ramesh Chandra Agarwal but the department had not even cared to issue a notice to Shri Agarwal.
15. Further they are not claiming the watches as they have nothing to do with them. Their main grievance is that a penalty of Rs. 10,000/- has been imposed on Shri Sharad Chandra Bhandari merely on the basis of assumption and presumptions. It was their contention that as a matter of fact the show cause notice was defective inasmuch as Section 111(d) which have been invoked have not been shown. In any eventuality there was no evidence to show that Shri S.C. Bhandari was a person concerned in either smuggling or illegal dealing in smuggled watches and imposition of penalty was not justified in the circumstances of the case.
The learned SDR drew attention to the order-in-original and the cross objection filed by the department.
16. At the outset he clarified that the department is not aggrieved with any portion of the Additional Collector's order and the so called cross objection may be taken to written brief filed by the department and was not made available hence he could not be produced for cross examination as would be evident from the cross objection filed by the department. It was also his contention that watches of foreign origin were evidently recovered from the bathroom of the home in which the appellant was residing with his family and the bag also contained chits which seem to be written by Shri Ramesh Chandra Agarwal who had denied the handwriting in the chits. It was also his submission that in the circumstances of the case the imposition of penalty was justified.
17. I find that the submissions of the learned counsel have strong force.
18. The watches which were found in the premises in which the appellants was living with his family have been confiscated absolutely.
19. The appellants is not claiming the watches. He has on the contrary contended that he had no knowledge how the bag containing watches was found in the bathroom. He has also stated that the bathroom can be entered from outside and this fact has not been contradicted by the department. That apart the appellant has also stated that the appellant Shri Sharad Chandra Bhandari was at the time of the visit of the officers, lying ill and this fact has not been denied. The contention of the appellant that in spite of an order of remand directing due observance of principles of natural justice all the persons whose cross-examination was requested had not been made available for cross-examination has also not been denied.
20. I further observe that the liability has been fastened on the appellant merely on the ground that he was the Karta of the family.
21. I consider that the learned counsel has rightly pointed out that in the case of J.A. Naidu v. State of Maharashtra (1979 Cri. L.J. 962) the Hon'ble Supreme Court has observed that "suspicion, however grave, cannot take place of proof. Hence the appellant cannot be held as guilty merely on suspicion.
22. The learned counsel has also rightly drawn attention to the case of Rad-hakishan v. State of U.P. (AIR 1963 SC 822) in which the Hon'ble Supreme Court has observed, inter alia in respect of the articles which were found in an almirah of the house in which the accused lived jointly with his father that the evidence was not sufficient to infer exclusive possession of the articles by the accused. The Hon'ble Supreme Court had further observed in the case that the fact that the accused had the opportunity to get the articles is not sufficient to infer exclusive possession of the accused and his articles, and that no presumption could therefore be drawn against the accused that he had secreted them on the...they have been found in the almirah which at best... recorded as being in the joint possession of himself and his father, even an inference of joint possession will not be legitimate".
22. In the instant case also the department has not been able to show any evidence which would go to prove that the watches in question were in the exclusive possession of the appellant; and even an inference of joint possession could not be legitimately drawn; And therefore, following the ratio of the above two judgments it is apparent that the appellant could not be held as liable to penalty in the circumstances of the case. Hence...order as already announced in the open court.
23. The appeal is accordingly allowed with the direction that consequential relief due...to the legal representative on record Shri Anil Kumar Bhandari, S/o. Shri Sharad Chandra Bhandari, the original appellant.