Customs, Excise and Gold Tribunal - Delhi
Jaswinder Singh vs Collector Of Customs on 26 May, 1998
Equivalent citations: 1999(107)ELT801(TRI-DEL)
ORDER A.C.C. Unni, Member (J)
1. These are three appeals filed by the above named three appellants against the common order-in-original dated 15-9-1994 passed by Collector of Customs, New Delhi-II by which certain goods of foreign origin seized from two trucks (Truck Nos. NL-02 A0506 and UGR 807) and Tanker No. CH-01-3396 were directed to be confiscated under Section 111(d) of the Customs Act, 1962 apart from confiscating the said vehicle under Section 115(2) thereof with option to redeem the same on payment of fine of Rs. 50,000 each apart from imposing personal penalties of Rs. 3 lakhs each on the present appellants (among others) under Section 112(b).
2. Since the facts relating to the three appellants are common and arose from the common impugned order, they were heard together and are being disposed of by this common order.
3. The three aforesaid vehicles were intercepted on the Amritsar-Delhi road on 23-11-1992 on the basis of intelligence report that they were carrying goods of foreign origin. Search of the vehicles conducted in the presence of two independent Panchas and the occupants of the vehicles showed that several packages of colour P.C. paper, Laser Printer, Circular Saw Blades, Printing Plates, Vernier Calipers, Micrometers, Press buttons, Video Cassettes and Aluminium bottles containing certain chemicals valued in all at Rs. 44,68,580-were recovered from them. Further, search of Truck No. UGR 807 revealed that 96 pieces of drilling machines and 84 pieces of disc grinders of foreign origin valued at Rs. 3,12,000/- were concealed in a cavity near the driver's cabin. Certain pieces of negative film rolls, roller bearings, zip fasteners collectively valued at Rs. 29,51,200/- and of foreign origin were also recovered. Occupants of the vehicles, namely, S/Shri Tarsem Singh, Jaswinder Singh, Jograj, Sanjeev Kumar, Sushil Kumar and Kuku Singh could not produce any documents to show the illicit importation and acquisition of the said goods of foreign origin. The goods as well as the vehicles were, therefore, seized under the provisions of the Customs Act on the reasonable belief that the goods were smuggled into India and were liable to confiscation.
4. Driver of Truck No. CH-01-3396, Shri Tarsem Singh in his statement dated 24-11-1992 under Section 108 of the Customs Act stated that the Truck was owned by Sardar Jaswinder Singh and on instructions from Jaswinder Singh he had brought the truck from his village in Patiala Distt. to Delhi on 14-11-1992 and as instructed by Jaswinder Singh, he (Tarsem Singh) had contacted one Ramesh Wadhera of Delhi on telephone (Telephone No. 5588687). Shri Ramesh Wadhera along with another person had told him that he (Tarsem Singh) would have to go to Khatima in U.P.; in a day along with his truck and two more tankers which were expected to arrive from Zirakpur in Patiala Dist. On 16-11-1992 two more tankers owned by Jaswinder Singh, arrived along with their drivers Sushil Kumar and Kamal respectively and on instruction from Ramesh Wadhera the number plate of one of the tankers was re-painted; that Ramesh Wadhera had told him and the other drivers that they would have to take their respective vehicles to Khatima in U.P. and that certain persons by name Kuku, Satish or Chopra Babuji would meet them near a Hotel in Khatima where certain goods would be loaded. Ramesh Wadhera had also told him that instead of following the normal route to Delhi he should come via Bareilly, Badayun, Gajaula and Hapur. On their return to Delhi at about 12.30 in the night, DRI officers took their vehicles to DRI Office at Lodhi Road and after search of the vehicles, contraband goods were recovered and seized under Panchnama. Shri Tarsem Singh stated that Ramesh Wadhera had told him that the said goods were smuggled goods and that there were no documents for them. Sh. Tarsem Singh also admitted that he had knowledge of smuggled goods being loaded in his truck. The cleaner of Truck No. CH-01-3396 in his statement dated 24-11-1992 stated that the said trucks along with the two other vehicles had left Delhi for Khatima and that on 22-11-1992 between 3 a.m. and 4 a.m. they had reached a forest near Khatima where three trucks were already standing and that some labourers removed the goods from these parked trucks into Truck No. CH-01-3396 and Tanker No. NL-02-A0506. That the said two vehicles along with Truck No. UGR 807 left for Delhi via Bareilly and the three vehicles arrived at Libaspur Petrol Pump at Delhi about midnight and after half an hour or so the DRI officers took the vehicle to their Office at Lodhi Road and after search recovered the goods in the presence of Panchas. The driver of Truck No. UGR 807 Shri Jog Raj Singh in his statement dated 24-11-1992 said that Truck No. UGR 807 was owned by Shri Surinder Singh of Faridpur, Distt. Bareilly. That in the evening of 21-11-1992 Shri Surinder Singh had accompanied him with the said truck to the forest 4 kms away from Khatima; that some workers were already there and that the owner of the truck unscrewed the bolt of iron sheet behind the driver's cabin and loaded the goods in the cavity and thereafter the owner of the Truck fixed the iron sheet with nuts and bolts; that Surinder Singh, the owner had told him (Joginder Singh) that he had to take the truck to Delhi and follow Truck No. 3396 and for this job Surinder Singh would pay him Rs. 3000/- and that he (Jog Raj Singh) was to deliver the goods to the person to whom the driver of Truck No. 3396 would be delivering the goods; that Surinder Singh had also told him that the goods concealed in the Truck were of foreign origin and that there was no receipt for the said goods; that he had taken Truck No. UGR 807 to Delhi via Bareilly along with Truck No. 3396 and Tanker No. 0506. The driver of tanker No. 0506, Sushil Kumar, in his statement dated 24-11-1992 admitted the recovery of the goods of foreign origin from his tanker. He also stated that the tanker was owned by Shri Jaswinder Singh; that he had brought the said tanker from village Bisanpura, Post Office Dakoli, Distt. Patiala to piragarhi, Delhi, on instructions from Shri Jaswinder Singh; that he (Sushil Kumar) was paid Rs. 2000/-; that he along with the drivers of the other vehicles had reached Khatima and one Chopra had come and instructed the Drivers to follow him and that the goods were loaded in his tanker and Chopra had told him that the goods were of foreign origin and that no documents for those goods were available and in his presence (Sushil Kumar's presence) goods of foreign origin were loaded in Truck No. 3396 and 807; that the three vehicles followed the white Maruti Car in which Chopra was travelling upto Bareilly and as per instructions from Chopra they reached Delhi via Hapur. Further, the owner of the tanker was to pay him Rs. 1000/- per truck for transporting goods of foreign origin in addition to his monthly salary.
5. The statement of the appellants Shri Jaswinder Singh was recorded on 24-11-1992 in which he admitted recovery of the seized contraband goods but denied any knowledge or concern about the contraband goods and the truck under seizure. Nothing incriminating was found from the residential premises of Shri Ramesh Wadhera on 24-11-1992.
6. On the basis of further investigations a SCN dated 19-5-1993 was issued to the drivers of the vehicle as well as to the three appellants before us alleging that they were concerned for carrying, keeping, transporting and otherwise dealing with smuggled goods and therefore liable to penal action under Section 112 of the Customs Act, apart from asking them to show cause as to why the said goods should not be confiscated under Section 111(d) and why the vehicles should not be confiscated under Section 115.
7. The present appellants Shri Jaswinder Singh in his written reply to the SCN denied all the allegations and denied any concern with the seized goods. He denied any knowledge about the ownership or transportation of the said goods or any connection with Ramesh Kumar Wadhera and others. He further submitted that Truck No. CH-01-3396 belonged to him and Truck No. HR-03-7796 which was repainted with another number belonged to his brother. He stated that there was no case of smuggling made out against him. He would also be making a separate application for the release of the trucks belonging to him and his brother. One Maninder Singh (who was not a noticee) by letter dated 12-8-1993 requested for the release of Tanker No. NL-02-A-0506 seized by the DRI officers and claimed that he was the owner of the said vehicle. Though notice of personal hearings were issued to all the noticees with instructions about the date of personal hearing, none appeared for personal hearing. The Collector, therefore, proceeded to deal with the matter on the basis of the record and on the basis of the reply sent by Jaswinder Singh.
8. The adjudicating authority held that Shri Tarsem Singh, Driver of Truck No. 3396 had stated that the truck was brought to Delhi on instructions from Shri Jaswinder Singh, its owner. The driver had also stated that he had proceeded to Khatima on instructions from Shri Ramesh Kumar Wadhera and that on earlier occasion also he (Tarsem Singh) had gone to Khatima to get goods for Ramesh Kumar Wadhera. Adjudicating Officer had observed that, though, Truck No. 7796 was registered in the name of Manvinder Singh, he (Manvinder Singh) being a student, he had empowered Jaswinder Singh to look after the vehicle and Manvinder Singh had no concern with the transportation activities. After considering the statements given by Tarsem Singh and the other two drivers, namely, Sushil Kumar and Jog Raj, giving detailed narration of facts with specific details relating to the operation of smuggling, it was clear that Shri Jaswinder Singh, Ramesh Wadhera, Vinay Chopra, Ashok, Kuku, Satish and Surinder Singh were really in the know of the things mentioned therein. As regards the retractions subsequently made by the three drivers, the adjudicating officer took the view that they were only afterthoughts based on legal advise. He also observed that the submissions of drivers were corroborated by the cleaners of the three vehicles, namely, Jaswinder Singh S/o Karnail Singh, Sanjeev Kumar and Kuku Singh. On the basis of evidence before him, the impugned order was passed.
9. Appearing for the appellants, Shri Jaswinder Singh and two other appellants, namely, Shri Ramesh Kumar Wadhera and Shri Vinay Chopra, Shri Navin Malhotra, Ld. Counsel, submitted that the impugned order had been passed without observing the principles of natural justice inasmuch as no opportunity had been given to the appellants for being heard. He submitted that no notice of hearing was served on appellant Shri Jaswinder Singh. Further, only one notice of hearing, if at all, had been given to the appellants. Since no hearing had been given to the appellants, they could not also cross-examine the witnesses on whose statements the Department had relied. The appellant Shri Jaswinder Singh in his reply to the SCN had specifically asked for cross-examination of witnesses as well as the co-noticees. He also questioned the reliance placed on the statement of a co-accused. He drew attention to the impugned order and stated that no reasons have been spelt out for imposing personal penalty upon the appellants and no specific act of commission which related the goods liable to confiscation to the appellants making them liable to penalty had been brought out. The requirements of Section 112 had, therefore, not been satisfied. He submitted that it was a settled principle that the onus is on the Department to show that any act of omission or commission attracting penalty was deliberate and there was mens rea and if two constructions are possible, the one in favour of the subject should be adopted. He, therefore, pleaded for setting aside the penalty of Rs. 3 lakhs imposed on appellants.
10. The ld. DR submitted that excepting appellant Jaswinder Singh, who had sent a written reply to the SCN, none of the other noticees, had replied to the notices nor responded to the summons issued to them. They did not also attend the personal hearing, the notices for which had been issued. He submitted that the statements given by the drivers were very detailed and were corroborated by the three cleaners accompanying the three vehicles. He also submitted that notices issued for personal hearing before the Collector had been returned undelivered. Having regard to the detailed evidence available from the statements and the Panchnama, the Department's case was fully proved and therefore, the appeals had no merit. He, therefore, pleaded for the confirmation of the impugned order and dismissal of the appeals.
11. Heard and considered arguments advanced on behalf of the parties. Ld. Counsel had submitted that the statements of the three drivers were extracted under duress and these had been later retracted. Further, the statements being that of co-accused, they could not be relied upon. Further, appellants, Shri Ramesh Kumar Wadhera and Vinay Chopra had not been served with any notice nor were they given any opportunity to defend themselves. Therefore, this was a clear case of failure to observe principles of natural justice. We notice that, though, the notices for hearing had not been delivered to the appellants through postal channels as provided under Section 153(a) of the Customs Act, the Department had, as a last resort, pasted the notice in the notice board which was, under clause (b) thereof sufficient notice when it was not possible to serve a notice under the normal channels. Legally, therefore, it cannot be contended that an opportunity for personal hearing was not given to the appellants. It is also on record that the summons issued to the noticees had not also evoked any response from them. The normal inference in such cases is that the noticees were evading service of summons. However, the fact also remains that atleast in the cases of Appellants Ramesh Kumar Wadhera and Vinay Chopra, no effective opportunity has been given to them to defend charges against them.
12. Having regard to the above, we allow the three appeals filed by Shri Jaswinder Singh, Ramesh Kumar Wadhera and Shri Vinay Chopra by remand with direction to the Adjudicating Authority to adjudicate the cases against the three appellants de novo after observing principles of natural justice.