Customs, Excise and Gold Tribunal - Delhi
Jagdish Shanker Trivedi And Ors. vs Commissioner Of Customs on 27 July, 2005
Equivalent citations: 2006(194)ELT290(TRI-DEL)
JUDGMENT
R.K. Abichandani, J. (President)
1. These five appeals are direct-ed against the order of the Commissioner of Central Excise, Kanpur made on 4.8.1999 by which the Commissioner ordered confiscation of 79 silver ingots weighing 2640.277 Kgs. valued at Rs. 1,75,60,169/- which were recovered and seized from the premises of "Doodh Ki Dairy", Poni Road, Jhandey-Wala Chauraha, Bramh Nagar, Shukla Ganj, Unnao under Section 111(d) of the Customs Act, and confiscating 25 silver slabs weighing 373.365 Kgs. valued at Rs. 24,82,877.20 recovered and seized from the Maruti Van No. MP/09 H/2648, 25 silver slabs weighing 374.5 Kgs. valued at Rs. 24,90,425/- recovered and seized from Maruti Gypsy No. UP/78F/5344 and 14 silver slabs and one silver "thakia" (lump), recovered and seized from the melting unit of M/s. Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur weighing 223.230 Kgs. and vlaued at Rs. 14,77,829.50 paise, under Section 111(d) read with Section 120 of the said Act. The Commissioner also confiscated the cast/mould (Sancha) used for melting/casting silver slabs, etc. seized from the refinery unit of M/s. Ram Avar Naresh Kumar, under Section 118 and 119 of the said Act. The Maruti van and the Maruti Gypsy were also confiscated under Section 115(2) of the said Act. The Commissioner imposed personal penalties under Section 112(b) of the said Act on eight persons including the appellants of these five appeals. The appellant Ashish Kumar Chaursia, alias Pappu Doodhwala (Appeal No. C/376/99) and the appellant, Ram Avatar Singhal (Appeal No. C/30/2000) were imposed penalty of Rs. 2.5 crores each while penalties of Rs. 5 lacs each was imposed on Ram Kishore Mishra who had accompanied in the Maruti van (Appeals) No. C/381/99), and Jagdish Shankar Trivedi who had accompanied in the Maruti Gypsy, (Appeals) No. C/360/99) and Rs. 50 lacs on Dilip Kumar Singhal, partner and nephew of Ram Avatar Singhal, (Appeal No. C/31/2000)
2. On the basis of the information received by the Directorate of Revenue Intelligence, Delhi, a team of Officers and Staff of Customs and Directorate of Revenue Intelligence, intercepted a blue maruti Van bearing registration No. MP 09-H/2648 at about 11.00 AM on 18.12.92 near Mandhna Railway Station, G.T. Road, Kanpur. Shri Ram Bilash Mandal was the driver of that vehicle and Ram Kishor Mishra was found traveling in it. On being enquired, Ram Kishore Mishra admitted that 25 silver bricks, made out of the foreign marked smuggled silver ingots, were concealed in a specially designed cavity built in the floor of the Maruti van. He also stated that these 25 silver slabs were part of the consignment made out of the foreign marked silver ingots (silies) stored in the premises situated at Pony Road, Shukla Ganj, Unnao. The said Maruti van along with the driver, Ram Bilash Mandal and Ram Kishore Mishra were taken to the headquarters of the office of Customs and Central Excise, Kanpur, where the vehicle was searched and rummaged in the presence of two panchas and these two persons. The driver, Ram Bilash Mandal showed an unscrewed the specially designed cavity in the Maruti van and the search resulted in recovery of 25 silver bricks from that cavity and some documents relating to the vehicle. The recovery of 25 silver bricks were assayed by the Government approved assayer who found them to be "999 pure", weighing 373.365 Kgs. and of the value of Rs. 24,82,877.20 at the rate of Rs. 6650 - per Kg. as per his report dated 18.12.92. The officers under a reasonable belief that the recovered goods were made by recasting the smuggled contraband silver ingots of foreign origin were liable to confiscation under the said Act, Seized same under section 110 thereof under the panchanama dated 18.12.1992. The Maruti van was also seized under a panchnama.
2.1 On the basis of the clues given by Ram Kishore Mishra during the enquiry, and his statement taken on 18.12.1992 a team of officers was deputed to further search of "tabela"- buffalo shed/doodh-ki-dairy of Ashish Kumar Chaurasia alias Pappu doodhwala, Poney Road, Jhandey Wala Chaurah, Bramh Nagar, Shukla Ganj, Unnao. The officers visited the said place on 18.12.92 and the search warrant was executed upon Om Prakash, s/o Laxman Prasad, who was the employee of the 'doodh-ki-dairy', in the presence of two independent witnesses as Ashish Kumar Chaurasia was not present at that time. Om prakash, disclosed in the presence of two independent witnesses, that Ashish Kumar Chaurasia (Appeal No. C/376/99) regularly visited the dairy along with his labourers and concealed something in the ground which he sometimes took out and carried in his car. Om Prakash showed that spot in the premises of the dairy where Ashish Kumar Chaurasia alias Pappu had concealed the same. The officers got the earth dug up at the place shown by Om Prakash in the presence of two panch witness and after digging a trench of about four feet, they recovered 75 silver ingots (silies) individually wrapped in jute packing. Further search of the premises resulted in the recover of four more silver ingots which were ingots which were kept concealed under a gunny bag near the wall, opposite to the trench which was dug up. A few of the reocvered silver ingots which were unpacked were prima-facie found bearing marks of foreign origin like, "Jhonson and Matthey Refiners London 999", and appeared to be liable to be safiscated under Section 111 of the said Act. The goods were transported to the headquarters at Kanpur along with Om Prakash and the two independent witnesses for completion of seizure formalities, as it was getting dark and curfew was imposed in the area after 6.00 P.M. The recovered 79 silver bricks were opened and examined by the officers in the presence of Om Prakash and two independent witnesses and on a close examination of the individual silver bricks it was found that 74 of them were having foreign marking. The remaining silver bricks which were of the same size and shape did not bear markings, but appeared to be of foreign origin. A detailed inventory was prepared in the presence of these persons. The Government assayer ascertained the weight and purity of these silver bricks and found that all the 79 silver bricks were of 999 purity and they totally weighed 2640 227 Kgs. and were of the value of Rs. 1,75,60,169/- at the rate of Rs. 6650/- per Kg. Since it appeared to the customs officers that the recovered silver bricks were smuggled and were liable to be confiscated under the said Act, they seized the goods under the panchnama/recovery memo dated 19.12.1992.
2.2. On 18.12.1992, another team of customs officers was sent to the shop of M/s Ram Avatar Naresh Kumar 49/62 Bagla Building, Naya Ganj, kanpur and it carried out the search in the presence of two independent witness under a panchnama. Simultaneously, the other team of officers visited the refinery/melting unit situated in the same building at 49/62 Bagla Building, Naya Ganj, Kanpur where the shop of M/s Ram Avatar Naresh Kumar was situated. The search warrant was executed upon Ram Avatar Singhal, who was the partner of the refinery/melting unit in the presence of two independent witnesses. During the course of search, it was found that melting furnace, melting crucible pot (Balti), one die/mould (sancha) and 14 silver bricks were found lying in a hot condition. The furnace and 14 silver slabs were cooled down by pouring water on them. A crucible/melting pot was taken out from the furnace and one round shaped silver (thakia) was taken out. The search of the said premises resulted in recovery of 14 silver slabs, one silver 'thakia' and one melting crucible pot, one die/mould (sancha) and two gunny bags used for packing of foreign marked silver bricks. A detailed inventory was prepared at the spot in the presence of two independent witnesses. The recovered goods were seized and on being assayed by the approved assayer were found to be of the purity of .999, weighing 222.230 Kgs. and of the value of Rs. 14,77,829/-. These were also seized under section 110 of the said Act the panchnama drawn on 18.12.1992.
2.3 On the same day i.e. 18.12.1992, another vehicle, Maruti Gypsy bearing registration No. UP-78F/5344 carrying contraband silver bricks was intercepted at 4.30 PM near Lal Kuan Chungi, Naka, GT Road flyover near Ghaziabad, by the officers of the DRI and 25 bricks of silver were recovered. This vehicle was driven by Ram Kumar Kashyap and Jagdish Shankar Trivedi aias 'Jijaji' was traveling in it. The vehicle was taken to the DRI office, IP Estate, New Delhi along with the driver and the said occupant and recovery proceeding took place in the presence of two panch witness. On enquiry by the officers of the DRI, the driver of the vehicle gave his name as Ram Kumar kashyap of Kanpur and the other person as Jagdish Shanker Trivedi of Kanpur. On searching the said Maruti Gypsy, an on plate was noticed in the rear seat. On removing the iron plate, 25 silver slabs, wrapped in jute bags, were recovered from the specially designed cavity in the Maruti Gypsy. The driver, Ram Kishore Kashyap disclosed that he along with Jagdish Shanker Trivedi were carrying the recovered silver slabs from Kanpur to Delhi and it was concealed by Jagdish Shanker Trivedi in the vehicle so that it may not be detected by any one. He also disclosed that the recovered silver slabs were made out of foreign marked smuggled silver ingots. The approved assayer, Jagdish Lal weighed and valued the recovered silver and found it to be of the purity of. 999, weighing 374.5 Kgs. and of the value of Rs. 24,90,425/- as per the certificate issued to that effect. On a reasonable belief that he recovered 25 silver slabs were made from foreign marked silver bricks and were smuggled goods, they were seized under a panchnama dated 18.12.1992. The vehicle was also seized along with the documents such as registration certificate insurance paper, etc. 2.4 Statements of Ram Kishore Mishra (Appeal No. C/381/99), Ram Avatar Singhal (Appeal No. C/30/2000), driver of the Maruti van (Ram Bilas Mandal), Om Prakash, employee of Ashish Kumar Chaurasia, Ram Kumar Kashyap, driver of the Maruti Gypsy, Jagdish Shanker Trivedi, alias Jijaji (Appeal No. C/360/99) and the panch witnesses who confirmed the recovery of 79 silver bricks of foreign markings from the premises of Ashish Kumar Chaurasia, and others were recorded under section 108 of the said Act, before the accused Ram Kumar Mishra, Ram Bilas Mandal, Ram Avatar Singhal and Om Prakash were arrested under Section 104 of the said Act on 2012.92 and were produced before the Chief Judicial Magistrate on 21.12.92. They were remanded for judicial custody upto 4.1.93. Their statements were again recorded on 3.1.93 while in judicial custody under section 108 of the said Act. From the statements of Ram Avatar Singhal, Ram Kishore Mishra and Om Prakash, it transpired that doodh-ki-dairy was owned by Ashish Kumar Chaurasia and that he used to bring foreign marked contraband silver and used to give the same to Ram Avatar Singhal for getting it melted and being sold, and he used to conceal the contraband silver under the ground in his dairy premises. It was also stated that no part of the dairy was given on rent for the last 12 years and that the dairy was soley owned by Ashish Kumar Chaurasia. The Commissioner of Central Excise, Kanpur, issued a detailed show cause notice with accompanying documents on which reliance was sough to be placed, alleging that the persons named above including the appellants were liable to penal action under Section 112, and that the seized goods were liable to be confiscated and penalty was liable to be imposed on the person named therein including these appellants, under the provisions of the said Act. The show cause notice was issued on 8.6.1993.
2.5 The service of the show cause notice issued under Section 124 of the said Act was ensured by sending through registered post as well as by personal service and also by adopting the procedure of pasting the show cause notice at the main door of the premises as provided under the said Act as recorded in the impugned order. The noticees were required to file their replies within 30 days and to indicate whether they desired to be heard in person.
2.6 The appellant Ashish Kumar Chaurasia (Appeal No. C/376/1999) who filed his reply on 11.10.1993 contested the show cause notice contending that he had no concern whatsoever with the silver seized from his doodh-ki-dairy, or the silver seized from any of the two vehicles. According to him, the show cause notice failed to take note of the telegram dated 21.12.92 sent by the noticee intimating that the place from where the seized silver was allegedly recovered was let out to Ram Avatar Singhal on a monthly rent of Rs 200/- and that he was not in possession and use of the premises on the relevant date. It was also stated that a suit was filed by his brother, Ansu Kumar Chaurasia against Ram Avatar SInghal on 11.12.92 in the court of Civil Judge, Unnao. In the Reply, appellant death with the allegations implicating him, made by Ram Kishore Mishra, Ram Avatar Singhal, Ram Bilas Mandal and other witnesses in their statements recorded under Section 108 which were reproduced in the show cause notice. According to the appellant, Ashish Kumar Chaurasia, there was a total lack of any legal evidence in support of the proposed penalty under section 112 of the said Act. He requested for personal hearing and for examination of all official witnesses, panch witnesses, co-noticees and other persons whose statements were relied upon.
2.7 The appellant, Ram Avatar Singhal (Appeal No. C/30/2000) in his reply dated 19.12.1992 contended that he was not concerned with the silver bricks which were found from the Maruti van/maruti Gypsy and the doodh ki dairy. As regards the 14 Silver bricks and one silver thakia seized fro his refinery, he stated that they belonged to one Narendra Kumar, who had given old ornaments stating that they were ancestral assets which were to be refined an converted into bricks for sale and the sale amount was to be paid to Narendra Kumar. According to him, the silver was received from Ashish Kumar Chaurasia alias Pappu doodhwala, and that his statement was obtained under duress and coercion. According to him, he did not do any refinery work as alleged against him in the show cause notice and in the statements recorded under Section 108 and referred to therein.
2.8. Ram Kishore Mishra (Appeal No. C/381/99) in his reply dated 17.12.1993 alleged that the show cause notice was based on his statement and the statement of the driver, Ram Bilas Mandal which were obtained under threat and coercion, that he was no where near the place of the Maruti van from where 25 silver bricks were seized, and that he was neither the owner of the silver bricks seized from the Maruti van nor in any way concerned with them. According to him, he was forced to write a statement implicating the name of Ram Avtar Singhal and that the statements were retracted jointly with Ram Avatar singhal and Ram Bilas Mandal on 21.12.1993 when they were produced before the Chief Judicial Magistrate. It was contended that the retracted statements had no evidentiary value because they were not corroborated by any independent evidence and that it is a well settled law that confession of co-accused has no evidentiary value unless the facts are otherwise borne out by independent evidence.
2.9 Ram Bilas Mandal (driver of Maruti van), in his reply dated 1.12.1993 contended that he was an illiterate person and was only a driver and his statment was taken by the officer under pressure. According to him he was not connected in any manner with the seized silver and had no knowledge that taking of silver to Delhi was wrong. According to him, the silver was kept in the cavity in the cavity of the Maruti van because of fear of its theft and that he had not committed any offence.
2.10 Om Prakash, employee of Ashish Kumar Chaurasia, in his defence reply dated 21.7.1993 submitted through his cosultant, categorically stated that the show cause notice did not attribute any specific activity to him and thus the notice was vauge, ambiguous and unspecific. Therefore, he was not in a position to make any effective and purposeful representation. He alleged that he was employed as a milk man and had no connection with any other activities. According to him, he had no knowledge of any contraband silver being kept in the dairy premises and that he had not shown the spot from where the recovery of the silver was made in the dairy premisses. He also requested to examine the witnesses as mentioned in the reply of Ashish Kumar Chaurasia.
2.11 Shri jagdish Shanker Trivedi (Appeal No. C/360/1999) in his defence reply received in the office on 17.12.1993, denied the allegations made in the show cause notice and alleged that on 18.12.1992, he had to go to Delhi From Kanpur for some personal work and because of the curfew, he took a lift in the private vehicle on payment of Rs. 100/- to the driver. According to him, he was unaware of the owner or the driver of Maruti Gypsy which was stopped near Lal kuan, Ghaziabad by the DRI officers who forced him and the driver to accompany them to their office. According to him, nothing incriminating was seized in his presence. On reaching the DRI office, he was asked to link the silver recovered from the Maruti Gypsy and Ram avatar Singhal with the offence and that his statement was obtained under pressure, coercion and duress. According to him, he was a person of respectable family and did not indulge in such activity. He also requested for cross-examination of witnesses mentioned in the show cause notice.
2.12. Ram Kumar Kashyap, driver of Maruti Gypsy in his defence reply received in the office on 1.12.1993, expressed his ignorance and contended that he had done nothing wrong as a driver and was not required to check whether the goods were of Indian or foreign origin. According to him, he was forced to sign the document in the office, the contents of which were not explained to him. He contended that he was not a driver of Ram Avatar Singhal and he was employed by some other person and that he did not load the silver in the Maruti van.
2.13. Dilip Kumar Singhal (Appeal No. C/31/2000) in his defence reply stated that he was not concerned with 79 silver bricks seized from the dairy of Pappu doodhwala or the silver bricks seized from the melting/refinery unit, he stated that he was only a sleeping partner, and was not involved in the conduct of the business of the firm. According to him, Ram Avatar Singhal (who was his uncle and partner) would not have done anything wrong. He stated that he did not wake up Ram Kumar Kashyap nor helped him in loading of silver in the Maruti Gypsy and that the statement of Ram Kumar Kashyap to this effect appeared to have been recorded under duress. According to him, there was no evidence linking him with the seized silver and the proceedings were required to be dropped. He also requested for personal hearing.
2.14 Alok Kumar Chaurrasia and Ansh Kumar Chaurasia had also filed their defence replies dated 19.7.1993 through their counsel expressing that they were not concerned with the seized silver and contending that though the doodh-ki-dairy was jointly owned by them and their brother Ashish Kumar Chaurasia, there was no material to show any nexus between these two noticees and the activities alleged to have taken place at the dairy premises. According to them, the show cause notice was vague and no specific activity was attributed to them and, therefore, no action was called for.
3. The learned Commissioner after considering all the material on record in detail and noting the statements recorded including the statements recorded under section 108 of the said Act, came to a finding that it was established beyond doubt that the said 79 silver bricks which were recovered from the doodh ki dairy, Pony Road, Shuklaganj, Unnao valued at Rs. 1,75,60,169/- were of foreign origin. Though these were recovered from the said premises which were jointly owned by Ashish Kumar Chaurasia (Appeal No. C/376/99) and his brothers Alok Kumar Chaurasia and Ansh Kumar Chaurasia, none of them had claimed the ownership of these silver bricks and they had denied any concern with them. The Commisioner held that these 79 silver bricks appeared to have been imported illegally into India in contravention of prohibition imposed on the import of silver and no document were presented regarding their proper importation. It was held that the onus of proving that these silver bricks were not smuggled was not discharged in terms of Section 123 of the said Act and that these 79 silver bricks were accordingly liable to confiscation under section 111(d) of the said Act. As regards the 25 silver slabs valued at Rs. 24,82,877.20 recovered from the specially designed cavity of Maruti van No. MP-09H/2648, it was found that these were sent by Dilip Kumar SInghal (Appeal No. C/31/2000) on the directions of Ram Avatar Singhal (Appeal No. C/30/2000) from the melting/refinery unit of M/s. Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur, but both these noticees expressed that they were least concerned with the seized silver. It was held that the purity of the silver was confirmed to be of .999 which could be obtained only by melting foreign origin silver bricks and that no documents evidencing legal importation or possession were submitted and, therefore, the onus under Section 123 of the said Act was not discharged making the said 25 silver bricks liable to confiscation under Section 111(d) read with section 120 of the said Act. As regards 14 silver bricks and one silver thakia valued at Rs. 14,77,829.50 recovered from the melting/refinery unit of M/s. Ram Avatar Naresh Kumar, it was held that since the seized silver was found to be of the prurity of .999, it was evident that the recovered silver slabs and thakia (lump) were made out of foreign marked silver bricks. The learned Commissioner has disbelieved the version that silver ornaments were supplied by Narendra Kumar of Rohtak which were covered into silver bricks for subsequent sale, holdding that it was only an after-though to shift the ownership of the sezied silver without any support of evidence. It was observed that that there was no reason why any person of Rohtak would supply such a large quantity of silver ornaments to a person in Kan for melting recasting and subsequent sale at Delhi Which was very close to Rohtak. Moreover, neither any claim was filed by Narendra Kumar in respect of the silver nor was any evidence furnished by Ram Avatar Singhal to show that the silver ornaments were given to him by Narendra Kumar of Rohtak. It was, therefore, held that the said 14 silver slabs and one silver 'thakia' were liable to be confiscated under Section 111(d) read with section 120 of the said Act. As regards the 25 silver slabs valued at Rs. 24,90,425/- recovered from the Maruti Gypsy, the learned Commissioner holding that they were not claimed by the driver, Ram Kumar Kashyap nor by Jagdish Shanker Trivedi, the occupant of the Maruti Gypsy or Ram Avatar Singhal who sent these silver slabs from Kanpur to Delhi and that the purity of silver was confirmed to be .999 by the approved assayer making it clear that the silver slabs were made out of foreign marked silver bricks and that no documents for legal importation or possession were submitted, confiscated the same under section 111(d) read with section 120 of the said Act.
3.1 The learned Commissioner found that from the voluntary and independent statements of Om Prakash, Ram Avatar Singhal and Ram Kumar Mishra recorded under Section 108 a direct connection was established between Ashish Kumar Chaurasia alias Pappu doodhwala and the seized silver. It was held that he consistent statements which were recorded at Kanpur and Delhi at different times on the same day brought about the involvement of the noticees in the smuggling of the silver. It was also held that there was no proof regarding letting out of the permises to Ram Avatar Singhal and no body came forward to demarcate the area from the doodh ki dairy of Ashish Kumar Chaurasia. It was held that he various actions and the happenings at various places in Kanpur and in Delhi led to be discovery of the chain of smuggling network and Ashish Kumar Chaurasia was the master mind who operated the network. It was held that from the statements of all concerned the involvement of Ashish Kumar Chaurasia was proved beyond doubt and it was clear that he was directly involved in possessing, concealing, melting, transporting of smuggled silver for quit some time even before the instant seizure and that his role was much more than a paid carrier or storer and he appeared to be the organizer of the entire smuggling chain and obviously the biggest beneficiary of these acts. The cross-examination of the officers, A.K. Chaturvedi and Simon which was done by Ashish Kumar Chaurasia also revealed the involvement of Ashish Kumar Chaurasia as the main person. the learned commissioner held that Ashish Kumar Chaurasia had requested for another date for personal hearing after cross-examining these two officers so that his advocate could also appear and that various dates for personal hearing were given after this, "but neither Shri Chaurasia nor his advocate turned up". As regards the other noticees including the appellants, it was held that they subsequently stated that their statemetns were taken under duress and coercion. However, their statements were taken thrice on different dates and at different places and once under judicial custody in jail, on 18.12.1992, 19.12.1992,20.12.1992 and 3.1.1993 and the question of coercion or duress could not be believed and, that the retractions would appear to be an after though. Moreover, there was consistency in the statements initially given by different persons. As regards Ram Avatar Singhal, the learned Commissioner held that he was the owner of the refinery of M/s. Ram Avatar Naresh Kumar engaged in the melting and reshaping of foreign marked silver at the behest of Ashish Kumar Chaurasi and it was evident from the various statements of his own and the statements of Ram Kishore Mishra, Ram Bilas Mandal, Jagdish Shanker Trivedi and Ram Kumar Kashyap that a kind of arrangement was made between him and Aashish Kumar Chaurasia alias Pappu doodhwala for melting of silver in his refinery which he used to be sent to Delhi for disposal. He had admitted that the foreign marked silver bricks for melting purposes and sale was supplied by Ashish Kumar Chaurasia. As regards Ram Kumar Mishra (a friend of Ram Avatar Singhal) who was apprehended on 18.12.1992 with 25 silver slabs concealed in the cavity of the Maruti van, it was held that he was in knowledge of transporting the silver slabs and was aware of the activities of Ashish Kumar Chaurasia and Ram Avatar Singhal and had admitted in his statement that he was aware of the smuggling activity. His involvement was corroborated by the searches of the premises conducted on the basis of his clues and the recovery of silver therefrom. As regards Jagdish Shanker Trivedi (Appeal No. C/360/99), it was held that he knew about the silver which was carried in the vehicle in a secret cavity in the Maruti Gypsy in which he traveled and was involved in the transportation of the contraband goods to Delhi. As regards Dilip Kumar Singhal, it was held that he was a partner of M/s. Ram Avatar Naresh Kumar and that o the morning of 18.12.1992, he was the person who woke up the driver Ram Kumar Kashyap, and loaded 25 silver bricks in the Maruti Gypse No UP 78F/5344 and had knowledge of the contraband silver being transported to Delhi in a concealed manner, and was thus directly concerned with concealing melting and transporting the contraband silver to Delhi.
4. We have heard the leaned counsel appearing for the appellant, Ashish Kumar Chaurasia alias Pappu doodh wala at length. The other appellants and their leaned counsel have not remained present. The learned authorized representative of the department has taken us through the entire record, and we have considered the matter in the context of each of the appellants in the light of the contentions raised by them in their appeal memos, defence replies and during the proceedings before the Commissioner and also in the light of the arguments advanced by the learned counsel for Ashish Kumar Chaurasia.
5. It has been contended on behalf of the appellants that though the appellant, Ashish Kumar Chaurasia and requested for an opportunity of cross-examination of the witnesses whose statements had been recorded under section 108 as well of the officers, opportunity was given only for cross-examining two officers and the rest of the witnesses including punch witnesses were not offered, resulting in violation of the principles of natural justice. He submitted that there was no evidence to show the involvements of the said appellant and there was no independent corroboration to implicate the appellant. It was argued that no penalty could have been imposed under section 112 of the said Act as the appellant was not "concerned" in any of the activities mentioned in the impugned order in respect of the seized goods.
5.1 The learned counsel placed reliance on the following decision in support of his contentions:
(a) The decision of the Supreme Court in Union of India v. G.T.C. Industries reported in 2003 (153) ELT 244 (SC) was cited for the proposition that finding could not be recorded by relying upon the oral submission made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to meet the same. Though this decision was relied upon for the contention that denial of an opportunity to cross-examine the witnesses vitiated the impugned order, it appears to us that no such proposition is laid down in this decision. In para 15 of the judgment the Supreme Court noted that no statement was made by Mr. Salio before the adjudicating authority and what was referred to as a statement was nothing but his oral submissions made at the hearing. In his background it was held in para 16 of the judgment that an adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to meet the same.
(b). The decision in Lakshman Exports Ltd. Versus Collector of Central Excise was cited to point out that in reply to the show cause notice, the assessee had specifically asked for cross-examination of the two person to establish that the goods in question has been accounted for and appropriated amount of excise duty was paid. It was held that the logic of such request for cross-examination was clear from the reply to the show cause notice. The matter was restored to the Additional Commissioner for a fresh hearing.
(c) The decision of the Tribunal in Sai Kripa EXIM (P) Ltd. versus Commissioner of Customs, Hyderabad was cited for three proposition that when the department was relying upon the statement of the co-noticees while making adverse comments against the respective parties, it was the bounden duty of the adjudicating authority to bring out supporing material on record for providing due opportunity to the assessee to meet the same and that since the cross-examination of the co-noticee was not permitted, principle of natural justice was violated. The Tribunal had placed reliance on the decision in Union of India versus GTC Industries (supra)
(d) The decision in Radha Kishan Bhatia versus Union of India reported in 2004 (178) ELT 8 (SC), was cited for the proposition that where a person gets possession of the goods illegally brought into the country after importation, even if with knowledge of their smuggled character, he cannot be ipso facto "concerned" with the commission of offence under section 112 of the said Act.
(e) The decision in Shalimar Rubber Industries versus Collector of Central Excise, Cochin reported in 2002 (146) ELT 248 (SC) was cited for he proposition that no reliance can be placed on the so called oral statement of the raw material supplier as he was not subjected to examination and cross-examination during adjudication. The Supreme-Court observed in para 9 of the judgment that if the collector can accept a statement allegedly made by a partner of the Universal Agencies which was not confirmed by his oral evidence in the inquiry and not subjected to cross-examination It failed to understand how he could reject the letter sign by the very same person where he had given a diametrically opposed statement
(f) The decision of the Tribunal in Jaswinder Singh versus Collector of Customs reported in 1996 (83) ELT 175 was cited for the proposition that statement of co-noticee or co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activity. It was held that the findings of non-appearance in response to summons cannot be a factor or criteria in determining the guilty conduct of the appellant.
(g) The decision of the Supreme Court in Arya Abushan Bhandar versus Union of India was cited to point out that where the panch witness was not produced for cross-examination though asked for, it was held that there was a breach of natural justice.
(h) The decision of the Tribunal in Balbir Steel (P) Ltd. versus Commissioner of Central Excise, Kanpur reported in 1999 (114) ELT 561 was cited to point out that the duty of Revenue did not end merely by issuing summons to the persons on whose statements it relied and that the Revenue ought to produce them for cross-examination, otherwise the statements could not be relied upon for the purpose of adjudication under the Central Excise Act.
(i) Reliance was also placed on the decision of the Tribunal in Jagatpal Prem Chand Ltd. versus Commissioner of Central Excise, Delhi 1 reported in 2004 (178) ELT 792, particularly on para 4.2, to point out that if witnesses do not turn up for cross-examination, it is open to the adjudication authority to proceed with the adjudication without relying on those statements against the person so charged. Failure of witness to appear for cross-examination will not be a ground to penalize the appellant in law when the appellant was entitled to an opportunity of cross-examination of third party on whose statements reliance was placed.
6. The learned authorized representative for the department took us through all the statements which were recorded under Section 108 the said Act and other material on record and also the impugned order. He submitted that these statements clearly established the involvement of all the appellants. It was established that the 79 silver blocks were recovered from the dairy premises of the appellant Ashish Kumar Chaurasia alias Pappu doodhwala, from a spot sown by his employee, Om Prakash in the presence of two independent witnesses. It was also established that ashish Kumar Chaurasia used to bring silver ingots of foreign origin and used to give the same to Ram Avatar Singhal for getting them melted and sold by him. Ram Avatar Singhal used to melt the silver for him and arrange for sending them in the vehicles in which special cavities were created to conceal the contraband silver during its transport. He submitted that both the Maruti van from which 25 silver slabs were recovered and the Maruti Gypsy from which also 25 silver slabs were recovered, were intercepted at different places one at Kanpur and the other at Ghaziabad near Delhi on the same date i.e. on 18.12.1992 by different officers. Statements initially recorded, in the presence of different witnesses, of the drivers and the persons who accompanied these vehicles clearly involved Ashish Kumar Chaurasia and Ram Avatar Singhal as persons directly concerned with the contraband silver which was being transported in these vehicles for being sent to Delhi. He submitted that having regard to the nature of those statements, recorded at different place on the same date by different officers clearly implicating these persons and the other appellants, there was absolutely no scope of those statements being recorded under coercion or their statements being involuntary statements. He also submitted that the statements made before the customs officers during the course of the enquiry were relevant even in any proceedings other than the proceedings before any court, in view of the provisions of Section 138B(2) and, therefore, the learned Commissioner rightly relied upon the statements. He submitted that the statements of the appellants implicating themselves and each other and also the appellant Ashish Kumar Chaurasia were amply corrborated by the nature of recoveries of contraband silver made from various places in the presence of the independent witnesses and the reports of the approved assayers. He also submitted that there was no specific mention of right to cross-examination made in Section 124 of the said Act and the appellants were only entitled to a reasonable opportunity of being heard in the matter under clause (c) thereof, which was duly given to them during the proceedings. He further argued that the department never denied an opportunity of hearing to these appellants and the appellant Ashish Kumar Chaurasia had in fact cross-examined two officers on 19.6.1995. He submitted that summons were sent to all the witnesses on 17.11.1994, 21.11.1994, 7.2.1995, 14.3.1995, 2.5.1995 and 19.6.1995. He pointed out from the original record that the appellants Ram Kishore Mishra and Ram Avatar Singhal vide their letter dated 29.1.1995 had stated that they did not want to be corss-examined. In the same way, appellant Jagdish Shankar Trivedi and the appellant Dilip Kumar singhal vide their communication dated 10.3.1995 stated that they did not want to be corss-examined. The driver of the Maruti van, vide letter dated 17.11.1994 stated that he did not wish to be cross-examined. All these persons had claimed that they could not be compelled to give evidence against themselved in view of Article 20(3) of the Constitution of India. The learned authorised representative for the department also argued that Mr. Asthana, Consultant who appeared for Ashish Kumar Chaurasia and his two brothers and Om Prakash, the employee of Ashish Kumar had refused to accept the service of the notice. After examination of the original record, that the notices were pasted on the notice board on 7.1.1994 under Section 153(2) of the said Act, he contended that the appellant Ashish Kumar Chaurasia and all the other appellants were given ample opportunities of dealing with all the statements which were recorded under Section 108 of the Act and other material which clearly were reproduced in the show cause notice issued to them. He submitted that the co-noticees could not have been forced to be cross-examined by Ashish Kumar Chaurasia. He also submitted that though represented by the same counsel who represented Ashish Kumar Chaurasia, Om Prakash was not being brough forther for cross-examination by Ashish Kumar Chaurasia. He contended that there was ample evidence on record to show the involvment of all the appellants and the conclusions reached by the learned Commissioner were, therefore, fully justified. He also submitted that Ram Avatar Singhal had not taken the premises on rent and the story put forth by Ashish Kumar Chaurasia was not reliable, since no rent note or any other document showing tenancy was brought on record. Moreover, despite the fact that this employee, Om Prakash had shown the sport where the silver blocks were concealed in the portion of the dairy premises, there was no effort made to show that the portion of the ground from which the silver recovered was not in the possession of Ashish Kumar Chaurasia. He also submitted that the appellant Ashish Kumar Chaurasia who was seeking cross-examination of the witnesses had not remained present on several occasions on the date fixed for hearing and as noted by the learned Commissioner, fourteen opportunities of personal hearing were given during the period 5.2.94 to 16.11.1998 and the desired persons were also called for cross-examination. But, adjournments were sought on one or the other grounds and irrlevant enquiries were raised resulting in delay of the adjudication proceedings.
6.1 The learned authorised representative placed reliance on the following decisions in support of his contention :
(a) The decision of the Supreme Court in Kanungo & Co. v. Collector of Customs, Calcutta and Ors. was cited for the proposition that principales of natural justices do not required that where the show cause notice set out all the material on which the customs authorities had relied and it was for the appellant to give a suitable explanation, persons who had given information should be examined in the presence of the appellants or should be allowed to be cross-examined by them on the statements made before the customs authorities.
(b) The decision of the Supreme Court in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin (SC) was cited for the proposition that confessional statements if found to e voluntary and truthful, inculpatory portion of retracted confession could be relied upon to base conviction under Section 135 of the said Act.
(c) The decision of the Calcutta High Court in Kishanlal Agarwalla v. Collector of Land Customs was cited for the proposition that formal cross-examination as procedural justice and that principales of natural justice did not require that there should be a kind of formal cross-examination. It was held that natural justice certainly includes that any statement of a person before it is accepted against somebody else, that perosn should have an opportunity of meeting it whether by way of interrogation or by way of comments, and so long as the party charged has a fair and reasonable opportunity to see, comment and criticise the evidence, statement or record on which the charge is being made against him, the demands and the test of natural justice are satisfied. (para 28)
(d) The decision of the Calcutta High Court in Tapan Kumar Biswas v. Union of India and others reported in 1996 63 ECR 546 was cited to point out that following the decision in kanungo's case and the decision of the Calcutta High Court in Ashutosh Ghosh and Anr. v. Union of India and Ors reported in 1977 Criminal Law Journal N.O.C. 67, and the decision of the Calcutta High Court in Kishan Lal (supra), the High Court held that these decisions in clear and unmistakable terms stated that whereas a proceedee would be entitled to inspect the relevant documents, they would not be entitled to cross-examine any witness.
(e) The decision of the Tribunal in Popular Carpet Industries v. Commissioner of Customs (P), Mumbai reported in 1996 (84) ELT 244 was cited for the proposition that where a co-notices did not agree to be cross-examined, he could not be compelled to come as a witness for cross-examination.
(f) The decision of the Tribunal in Maya Mahal Industries v. Collector of Central Excise Meerut repoted in 1995 (80) ELT 118 was cited for the proposition that it would not be proper to put the co-noticee in a position where he might have to incriminate himself by giving evidence.
(g) The decision of this Tribunal in Fortune Impex v. Commissioner of Customs, Calcutta reported in 2001 138 ELT 556 (kol) was cited for the proposition that it is not required that in each and every case cross-examination should necessarily by allowed.
7. We first take up the contention that there was denial of principles of natural justice by not offering the witnesses for cross-examination by the appellant Ashish Kumar Chaurasia, despite his request that all the witnesses should be examined. We have already noted that the appellant, Ashish Kumar chaurasia had cross-examined two officers on 19.6.1995. It also transpires that summons were sent to Ram Avatar Singhal, Ram Kumar Mishra and Ram bilas Mandal (driver), Jagdish Shanker Trivedi and Dilip Kumar singhal, who refused to be cross-examined on the ground that they cannot be compelled to five incriminating evidence against themselves in view of their fundamental right guaranteed by Article 20(3) of the Constitution under which no person accused of any offence shall be compelled to be a witness against himself. Section 124 (c) which provided that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter IV unless the owner of the goods or such person is given a reasonable opportunity of being heard in the matter, does not specify any right of cross-examination.
7.1 The question as to whether there was any contravention of natural justice by the customs authorities when the persons whose statements were recorded were not produced to enable their cross-examination, come up for consideration by the Supreme Court in Kanungo' case (supra) in the context of the provisions of confiscation made under Section 167(8) of the Sea Customs Act read with Section 3(2) of Imports and Exports (Control) Act, 1947 and the Supreme Court in paragraph 12 of the judgment rejected that contention in the following terms :
"12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The Complaint of the appellant now is that all the person from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant."
The decision in Kanungo & Co. was fooled by the Calcutta High Court in Tapan Kumar Biswas versus Union of India (supra) in paragraph 17 of the judgment and it was held that in a proceeding under the Customs Act the proceeds are not entitled to cross-examine the witness. The decision in Ashutosh Ghosh and Another versus Union of India and Others reported in 977 Criminal Law Journal N.O.C. 67, was also relied upon and it was observed in paragraph 20 of the judgment that the Supreme Court in Ashutosh Ghosh's case has categorically held that a proceedee is not entitled to cross examine the witnesses. The decision of the Division Bench of the Calcutta High Court in Kishan Lal case (supra) was also referred in paragraph 18 of the judgment and it was held to be laying down the proposition that cross-examination of the witnesses (in the matter under the Sea Customs Act) was not comprehended. Referring to all these decisions, the Court held, that a proceeded was not entitled to cross-examination of any witnesses under Section 124 of the said Act which lays down the extent of applicability of the principles of natural justice and under which a proceeded was not entitled to cross-examine any witnesses (para 11). Thus in view of the decisions of the Hon'ble Supreme Court in Kanungo & Co, Ashutosh Ghosh and of the Calcutta High Court, in the above two decisions, it is abundantly clear that a noticee cannot claim a right to cross-examine under section 124 of the said Act.
7.2 In the present case, however, ample opportunities were given to Ashish Kumar Chaurasia and other appellants to deal with the material which was sought to be relied on against them by referring it in the show cause notice. We have no reason to doubt the statement made in the impugned order that as many as fourteen opportunities of personal hearing were given from 5.2.1994 to 16.11.1998 to the appellants and the desired persons for cross-examination were also called, but either adjournments were sought on one ground or other or irrelevant enquiries were raised with the result that proceedings of personal hearing could not be conducted Properly. It was, therefore, rightly held that there was no justification is prolonging the adjudication. It is evident from the record that the appellants whose statements were recorded under section 108 of the said Act had made confessional statements implicating themselves under Section 112 of the Act and such statements were clearly binding on them. There was no question of their statements being recorded under duress, because as noted above, on 18.12.1992 when two vehicles were intercepted at two distant places namely at Kanpur and Ghaziabad near Delhi, statements of four different persons were recorded by different sets of officers reflected the involvement of the same persons including the appellant, Ashish Kumar Chaurasia, and there was no possibility of the same story being cooked up at two different place by the department. The drivers of the two vehicles and no enmity against the appellant Ashish Kumar Chaurasia, or the appellant Ram Avatar Singhal and their version, showing the involvement of Ashish Kumar Chaurasia as the person who kept the silver ingots of foreign origin concealed in his premises and giving them to Ram Avatar Singhal for melting and disposing them of, has a ring of truth. If statements were recorded under compulsion and duress at two different places by two different sets of officers, when two vehicles carrying contraband silver were intercepted there would hardly be any scope for the same persons being involved. Jagdish Shanker Trivedi was lawyer by profession and he would have not given any statement under pressure on 18.12.1992. This subsequent retraction by stating that he only took a lift because of curfew is a blatant effort to riggle out of the reality that reflected in the statements of the driver, Ram Kumar Kashyap and other witnesses. The confessional Statements of appellant who made them were binding on them. In this context, we may refer to the decision of the Supreme Court in Surjeet Singh versus Union of India where the petitioner sought cross-examination of the witnesses who said that the recovery was made from the premises of the petitioner, held that the confession made by the petitioner was binding on him and, therefore, failure to give him the opportunity to cross-examine the witnesses was not violative of principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held:
"3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that he petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the Panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch Witnesses for examination and cross-examination by the petitioner."
It may be noticed that he above observations were made even though the petitioner had retracted within six days from the confession. The Supreme Court held that confession though retracted is an admission and was binding on the petitioner and, therefore, there was no need to call panch witnesses for cross-examination of the witnesses. Therefore, so far as the appellants whose statements were recorded under section 108 of the said Act and which had clearly confessed to their involvement, there would be no violation of the principles of natural justice, as the witnesses were not required to be produced for cross-examination. Their subsequent retraction did not entitle them to claim cross-examination of the witnesses on the aspects, which were confessed by them. In the present case, even after the retraction, there have been statements, recorded on 3.1.1993 amounting to confessions.
8. We may also, recall here, the decision of the Supreme Court in Jethmal Pethaji versus Assistant Collector of Customs, Bombay in which the Supreme Court held in paragraph 8 of the judgment that all the parts of a recorded statement of an accused are not entitled to equal credit. An inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected. Where the inculpatory part of the statements of the accused is distinct and severable from the exculpatory part, if the court finds the exculpatory part to be inherently improbable, the other part of the statement which implicates the accused and which the court sees no reason to disbelieve, could be accepted.
9. As noted above, all the notices including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which Contraband silver was recovered, the employee of the appellant Ashish Kumar Chaurasia and the statements of the person who were traveling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with prohibited silver and were liable to imposition of penalty under section 112 of the said Act. In such a situation insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. In almost all the cases such persons dealing in contraband would refuse to be cross-examined on the ground that they are accused of an offence and, had a fundamental right against testimonial compulsion under Article 20(3), and thereby create a situation where each one of them, in the same breath, would ask for cross-examination of the other and refuse to be cross-examined, and then contend that refusal has resulted in failure of proper hearing. Therefore, principles of natural justice do not require that in matters like this, person who had given information should be allowed to be cross-examined by the co-notices on the statements made before the customs authorities. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-notices by each one refusing to be cross examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-notices. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as matter of right. The appellant Ashish Kumar Chauraasia had, in fact, cross-examined two official witness and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, "various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up". It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justices.
10. The appellant Ram Avatar Singhal was in the business of melting silver and was a jeweler. He, in his statement recorded on 19.12.1992, has admitted that he was a partner along with his nephew, Dilip Kumar Singhal in the firm of M/s. Ram Avatar Naresh Kumar. He stated that Ashish Kumar Chaurasia was a friend of his nephew and that he knew him well since the last 10 years. He also stated that Ashish Kumar Chaurasia was dealing in milk and having a shop. He stated that two months prior to this statements, Ashish Kumar Chaurasia alias pappu, doodhwala had asked him whether he (Ram Avatar Singhal) would melt silver of foreign make that he would bring. Ram Avatar Singhal agreed to do so. Thereafter the appellant Ashish Kumar Chaurasia, as agreed, used to bring silver ingots of foreign make for getting them melted in his refinery for which Ram Avatar Singhal was paid at the rate of Rs. 50/- per kg. He then admitted that after melting such ingots, he used to send them for sale in his vehicles Through his driver, Ram Bilas Mandal and Jagdish Shanker Trivedi alias Jijaji of his friend (Ram Kishore Mishra). He then admitted that he had melted 58 to 60 foreign marked contraband silver ingots and sent them to Delhi. He further stated that Ashish Kumar Chaurasia Used to conceal the smuggled silver ingots in his dairy farm at Kishori Ka Chata, Pony Road, Shuklaganj, Unnao. He also stated that his friend appellant Ram Kishore Mishra, who was a small time jeweler was sent by him to Delhi for selling the silver slabs and was paid Rs. 1000/- per trip. He admitted that on the morning of 18.12.1992, He had sent Ram Kishore Mishra with his driver Ram Bilas Mandal in his vehicle bearing No. MP-09-H/2648 with 25 silver slabs which were made by him by melting the foreign marked silver ingots in his refinery/factory. He had come to know that the vehicle was intercepted. He also stated that there was a concealed place in the vehicle for keeping the silver. The cavities were specially made in the car to transport the silver so that it was not detected. He also admitted that he had sent 25 silver slabs which were recovered from his Maruti Gypsy. The driver, Ram Kumar Kashyap was accompanied by Jijaji (Jagidh Shanker Trivedi) in the Maruti Gypsy which was also intercepted. He also admitted that 14 silver slabs and one silver 'thankia' (lump) were recovered from his refinery/factory. In his statement recorded on 20.12.1992 he again referred to the concealed cavities in the vehicles stating that Ashish Kumar Chaurasia had got them made. He has also stated that Ashish Kumar Chaurasia had shown to him the place where he was concealing the silver. He stated that Ashish Kumar used to bring silver ingots in his vehicle to his refinery for getting them melted. He used to bring 7 to 8 silver ingots at a time. He further stated that he was keeping the account of the sale of silver and was paid Rs. 20/- per kg. By Ashish Kumar Chaurasia who used to note down in his own diary.
11. Both the drivers in their statements admitted the interception of their respective vehicles and the recovery of the contraband silver from their cavitites, one at Kanpur and the other at Ghaziabad, which were taken to the respective customs offices for search under panchnamas. Both the drivers in their statements clearly showed their connection with Ram Avatar Singhal. Ram Kishore Mishra, who was accompanying the Maruti van which was intercepted near the railway station at Kanpur had stated that the silver belonged to Ram Avatar Singhal, at whose direction, it was being taken to Delhi. He also told the officers that Ram Avatar Singhal had melted the silver ingots were of foreign make and converted them into silver slabs in his refinery, address of which was given. He gave the information that foreign marked silver ingots were concealed in the ground of the premises of the doodh-ki-dairy owned by Ashish Kumar Chaurasia, alias pappu doodhwala. It is on the basis of this information, the customs officers proceeded to the said dairy farm from where they recovered 79 ingots of silver of foreign make under a panchnama. The panchnama and the statements of Panchas vividly described how Om Prakash, the employee of Ashish Kumar Chaurassia pointed out the spot in the dairy farm of Ashish Kumar Chaurassia which was dug up and from where 79 ingots of silver of foreign make were recovered. They had also recorded the statement of Om prakash that Ashish Kumar Chaurasia had concealed something in that portion of the dairy. It is clear that at that time, there was nothing to Indicate that the said portion was let out on rent to Ram Avatar Singhal. Ram Avatar Singhal had denied of having been let out any portion of the dairy farm. The appellant Ashish Kumar Chaurasia has tried to clinch the issue by referring to some suit filed by his brother mentioning that a part of the dairy farm was given on the rent of Rs. 200/- to Ram Avatar Singhal. In that suit, a prayer was sought in the Civil Court for removal of some wall, which was erected. No certified copy of the plaint was produced. It appears that though that suit came to be decided ex-parte much later, there was no attempt made to bring the fact of any rented portion being misused by Ram Avatar Singhal on the record of the proceedings. If there was any element of truth in the defence sough to be put up by Ashish Kumar Chaurasia that the silver ingots were recovered from a portion let out to Ram Avatar Singhal then that would have been brought on record in the suit filed by his brother in which he was made a supporting party. No prayer for eviction was sought in the suit. In view of the positive evidence, in the nature of statements of several witnesses, it is clear that the silver ingots were dug out form the premises, which were in possession and control of Ashish Kumar Chaurasia. There was no reason for Om Prakash to falsely implicate his master. Having regard to the various statements earlier made by the notices and other witnesses, it is evident that subsequent attempt was made by some of the appellants to retract them in the criminal proceedings was only an after-though. After their retraction before the judicial magistrate, statements were again recorded on 3.1.1993 which later statements had not been retracted. Driver, Ram Bilas Mandal had no axe to grind against the appellants. His statement clearly implicates Ram Avatar Singhal, Jagdish Shanker Trivedi, Ram kishore Mishra and Dilip Kumar Singhal. As regards Dilip Kumar Singhal, he clearly stated that he woke him up in the morning and got the 25 silver slabs loaded in the Maruti Gypsy in its concealed cavity made, which was intercepted at Ghaziabad. Ram Bilas Mandal was an employee of the appellant Ram Avatar Singhal residing with him and he had no reason to wrongly implicated Ram Avatar singhal or Ashish Kumar Chaurasia. Dirver, Ram Bilas Mandal had known about the place where the silver was concealed in the premises of Ashish Kumar Chaurasia. From his statement also, it transpires that he used to take the contraband silver to Delhi and was at times accompanied by Ram Avatar Singhal, Ashish Kumar Chaurasia, Jagdish Shanker Trivedialias Jijaji, and Ram Kishore Mishra. He has stated that Ram Kishore Mishra was a friend of Ram Avatar Singhal. Even in the statement recorded on 3.1.1993 Ram Bilas Mandal has admitted that he was driving the vehicle when it was intercepted and that contraband silver was recovered from it. He had stated hat he was paid salary by Ram Avatar Singhal and the payment for going to Delhi Was separately given by Ashish Kumar Chaurasia, alias pappu doodhwala.
12. It is clear to us from the statements of Ram Avatar Singhal, Ram Kishore Mishra, Ram Bilas Mandal and Ram Kumar Kashyap that the appellant Ashish Kumar Chaurasia, alias Pappu doodhwala was involved in concealing the silver ingots of foreign origin in his dairy premises and he used to give such ingots to Ram Avatar Singhal for getting them melted and sold for which he used to pay the agreed amount to Ram Avatar Singhal. The appellant Ram Avatar Singhal used to send to converted contraband silver to Delhi in the vehicle in which concealed cavities were made for The safe transport of the contraband goods. The appellant Ram Avatar Singhal used to depute Jagdish Shanker Trivendi, alias 'Jijaji' who was a lawyer along with his driver for transporting the contraband silver to Delhi for its disposal. He also used to send his friend Ram Kishore Mishra for transporting the silver to Delhi. Both the drivers were engaged for trips to Delhi for the said purpose. Ram Avatar Singhal was melting the ingots in his refinery, from where also, 14 ingots and one lump of silver were recovered on 18.12.1992 itself when both the vehicles in which the contraband silver was being carried were intercepted at Kanpur and at Ghaziabad near Delhi.
13. On consideration of the totality of the material on record and the facts and circumstance of the case, we are fully satisfied that the learned Commissioner of Central Excise was right in confiscating the seized goods and imposing the penalties on the appellants under the impugned order. The contentions raised on behalf of the appellants do not warrant any interference with the impugned order. All the appeal are, therefore, dismissed. Interim relief, if any, stands vacated.