Custom, Excise & Service Tax Tribunal
From What We Have Indicated Above And On ... vs 4.4 Investigation Revealed That A ... on 30 December, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNAL WEST BLOCK NO. 2, R. K. PURAM, NEW DELHI 110 066. PRINCIPAL BENCH, COURT NO. II CUSTOMS APPEAL No. C/63 of 2008 and MISC APPLICATION NO. C/M/69/2012 CC, New Delhi vs. Vinod Kumar Appearance for Revenue: Mr. Promod Kumar, JCDR and Govind Dixit SDR Appearance for Respondent: Mr. Bipin Garg, Sri Piyush Kumar
and Sri Prem Ranjan, Advocates CORAM: Honble Shri D.N. Panda, Judicial Member Honble Shri Rakesh Kumar, Technical Member Reserved on: 18/11/2013 Pronounced on: 08/08/2014 I.O.No.772/2014 Final Order No. 53864-53877/2015 PER D.N.PANDA
1. When this batch of 14 appeals of Revenue as tabulated below came up for rehearing under section 129 A of the Customs Act, 1962 (hereinafter referred to as the Act) pursuant to the order dated 23.5.2011 of the Honble High Court of Delhi in CUSAA Nos. 11/2011, 13/2011, 14/2011, 15/2011, 16/20111, 17/2011, 18/2011, 19/2011, 20/2011, 21/2011, 22/2011, 23/2011, 24/2011 and 25/2011 directing Tribunal to rehear each such appeal individually and pass appropriate order therein, a preliminary objection was made by the respondents filing different Misc. Applications as noted against each such appeal, challenging maintainability of the appeals contending that the Committee of Chief Commissioners while exercising power u/s 129 D of the Act to authorize filing of appeal by Revenue did not hold that the order appealed was neither legal nor proper, while such objection was neither made by respondents earlier before Tribunal in the first round of litigation nor before Honble High Court in appeals.
Sl. No APPEAL NO.
MISC APPLICATION NO.
RESPONDENTS Sl. No APPEAL NO MISC APPLICATION NO.
RESPONDENTS
1. C-59/2007 C/M/459/2012 Kamal Bajaj 8 C-66/2008 C/M/67/2012 D.S. Nanadal
2. C-60/2008 C/M/01/2012 V.S. Teotia 9 C-67/2008 C/M/2/2012 Neeraj Kumar
3. C-61/2008 C/M/75/2012 ParveenTeotia 10 C-68/2008 C/M/3/2012 Yashvir Singh
4. C-62/2008 C/M/74/2012 J.A. Khan 11 C-69/2008 C/M/68/2012 KanwalSuman
5. C-63/2008 C/M/69/2012 Vinod Kumar [Kain] 12 C-70/2008 C/M/5204/2012 S.D. Rajpal
6. C-64/2008 C/M/240/2012 R.K. Dakolia 13 C-71/2008 C/M/213/2012 S.A. Lamb 7 C-65/2008 C/M/70/2012 A.K. Varshney 14 C-72/2008 C/M/214/2012 V.K. Bharadwaj
2. Honble High Court of Delhi disposing appeals of Respondents, by order dated 23.05.2011 held as under:
From what we have indicated above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defense which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to the 14 customs officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua these 14 customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would endeavor to dispose of the same within six months. Parties shall appear before the Tribunal on June, 13, 2011. [Emphasis supplied]
3. Preliminary objection made as above being same in all the Applications and all appeals having arisen out of common cause, evidence and common order of adjudication, it was considered proper to hear all such applications and appeals together to dispose the preliminary as well as appeal by common order in each case.
BACK GROUND, COMMON CASUSE MATERIAL FACTS AND EVIDENCE 4.1 On 28.8.2000 investigation found that a frequent flying passenger named Ms. Olga Kozireva holding an Uzbekistan Pass Port arrived at the IGI Air Port, New Delhi from Bishkek by Kyrgyzstan Airlines flight K2-545 with bulk (commercial) quantity of 81,160 yards of Chinese silk textiles approximately valued at Rs. 155.82 lakhs @Rs. 192 per yard. When she attempted to take out one of the packages from airport, that was intercepted at the exit gate of Customs arrival hall and she was questioned. She denied to have brought any dutiable goods of commercial quantity and she had no means to discharge customs duty on 27 pieces of baggage manifested as 2,200 kgs. It was also found that the quantity and value of import was not disclosed by that passenger.
4.2 In terms of Para5.6 EXIM Policy 1997-2002 read with Section 3(2) and (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993, the goods of above description and nature were prohibited/restricted and import thereof in contravention of the said provisions is liable to confiscation under section 111 of the Act as smuggled goods in terms of section 2 (39) thereof. Accordingly those were seized.
4.3 Ms. Olga was arrested on 29th August 2000 as smuggler of aforesaid goods and being denied bail by learned ACMM, was before Honble High Court of Delhi in bail application as reported Olga Kozireva V. UOI on 18.5.2001 - 2001 Cri LJ 3701: 2002 (63)DRJ 183: 2002 (80) ECC 45. Her arrest paved the way for extensive enquiry and investigation. In her statement under section 108 of the Act, she revealed about her frequent travel to India during last three years prior to 28.08.2000, bringing Chinese silk during such visits and stayed in different hotels in Paharganj, New Delhi which was testified by pass port.
4.4 Investigation revealed that a racket of Afghans appearing in Column F of Table - 1 below (which is Table 14 of the adjudication order at Page 176 thereof), a team of passengers coming from CIS country as appearing in Column E thereof and a team of Respondent Officers of Customs whose name appears in bold letters in Column F of the said Table were involved and concerned in smuggling of the offending goods came to India on different dates as per column A of the Table.
TABLE - 1 (Ref:TABLE 14- Page 176 of OIO) Date & Flight Number Silk Textiles not decl. and not assessed. In meters Value of silk Textiles not decl. and not assessed In Rs.
Customs duty Evaded In Rs.
Person who, jointly or severally evaded duty on the illicit import Persons and Customs Officers who abetted smuggling Persons concerned with dealing with the goods (TRADERS).
A B C D E F G 17-12-98 KGA 2003 11338 7,71,007 6,19,659 Olga K, Nazira I and Shakista K Not know Not known 17-9-99 PK814 4546 3,09,125 1,89,185 Olga K Not know Not known 1-2-2000 KGA2001 22272 15,14,474- 9,26,858 Shakista K KamalBajaj, MamoorKhan,Sanak NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 27-2-00 HY 151 26159 17,78,785- 10,88,616 Olga K and Shakista K Mamoor,Klldll,TRKReddy,VK.Khurana, Ajay yadav, V.S Teotia, ParveenTeotiaJ.A. Khan, NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 10-4-00 K2 545 20696 14,07,355- 8,61,301 Shalo A MamoorKhan,Sanak, SudhirSharma, Yashpal, Olga K,notpassenger butatairport. Whenflight arrived.
NitishKedia, AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 17-4-00 HY 421 2129 1,44,752 88,588 Olga K MamoorKhan,TRKReddy, VK Khurana, Ajay YadavVSTeotia,ParveenTeotia, JAKhan.
NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,AnudeepSingh 23-4-2000 HY 433 3046 2472 3565 2,07,138 1,68,100 2,42,386 1,26,768 1,02,877 1,48,340 Olga K, Nazira I and Shalo A MamoorKhan,Sanak NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 8-5-2000 K2 545 6062 6062 4,12,243 4,12,243 2,52,293 2,52,292 Olga K and Isamu KM Mamoor Khan, SanakShahlo, Nazira I NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan,Sanak,NaziraI,RNZutshi,Yashpal, VinodKumar(Kain), VSTeotia, RKDocoliya,AKVarshney,DSNandal NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 22-5-00 K2 545 18296 12,44,155 7,61,423 Olga K Nazira I and Shahlo A MamoorKhan,Sanak, TRKReddy,SudhlrSharma,NeerajKumar NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko MamoorKhan,Sanak,Nazira,Isamu*KMMitrushov NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 1-7-00 HY 429 8220 5,58,946 3,42,075 Olga K MamoorKhan,Sanak, SudhirSharma,Nazira, NeerajKumar.
NitishKedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh >-7-00 9Y 219 14448 9,82,491 6,01,285 Olga K Mamoor Khan, Sanak, Yashpal NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 10-7-00 K2 545 21496 14,61,755- 8,94,594 Olga K MamoorKhan,Sanak,VinodKumar,RNZutshi, VS Teotia,RKDacoliya, AKVarshney, DSNandal NitishKedia,AnupSingh,Khem Singh, ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 17-7-2000 K-2 545 32654 22,20,450- 13,58,916 Nazira I MamoorKhan,Sanak,TRKReddyKozireva##not paxbutatairoport When flight arrived.
NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 24-7-2000 K-2 545 25630 17,42,840- 10,66,618 Merkulova L Dil Agha, MamoorKhan,Sanak, Sadullah, ZanjirKhan, TRKReddy,RNZutshi, Anil Madan Kozireva *Nazira*,*notpaxbutin aportwith flight Yashvir Singh, VinodKumar(Kain),KanwalSuman, NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 27-7-2000 PK 270 2467 5991 1,67,742 4,07,374 1,02,658 2,49,313 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, V K Khurana NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 31-7-2000 K-2 545 26194 17,81,219- 10,90,106 Olga K DilAgha,MamoorKhan,Sadullah,ZanjirKhan, VK Khurana NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,Mahender Jain.
Anudeep Singh 1-8-2000 PK 270 5419 5638 3,68,519 3,83,411 2,25,534 2,34,648 Olga K Nazira I DilAgha,MamoorKhan,S adullah, ZanjirKhan, RNZutshiVKKhurana* Anil Madan *put upadjudication papers VinodKumar(Kain), KanwalSuman, NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,Mahender Jain, Anudeep Singh 4-8-2000 PK 270 3934 6040 3,35,485 4,10,744 2,05,317- 2,51,376 Olga K Nazira I DilAgha,MamoorKhan,Sadullah,ZanjirKhan, VKKhurana,SDRajpal* NitishKedia, Anup Singh, Khem Singh, Arun Do-kania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh *comes for night duty and has contacts with OK still at aport and Shri Dinesh Agarwal Director.
11/12-8-2000 22668 15,41,424 9,43,351 Olga K Nazira I DilAgha,MamoorKhan,SanakSadullah,ZanjirKhan,PradeepRana NitishKedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 12,57,755 7,69,746 Merkulova DilAgha,Olga K*NaziraI*, *notpassengersbutassessed.
Mamoor Khan, SanakSadullah, Zanjir Khan, PradeepRana NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 2,66,759 Nazira I DilAgha,MamoorKhan,Sadullah,ZanjirKhan,OlgaK,PradeepRana, SA Lamb, VK Bhardwaj NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh 21-8-2000 K-2 545 31425 21,36,878 13,07,759 Merkulova L DilAgha,MamoorKhan,SanakSadullah,ZanjirKhan,R.N.Zutshi, Olga K*,Nazira*,*notpassengerbutassessed.
NitishKedia,AnupSingh,KhemSingh,ArunDokania,GopalDokania,SanjivJain,MahenderJain,Anudeep Singh Total 421245 2,86,44,640 1,75,78,322 4.5 The Respondent Customs Officers in column F of the Table above were in collusion with others and were found to be abettors to the clearance of the smuggled goods on different dates as appearing in Column A of the Table above. They were instrumental to the escapement of the said goods from Airport without payment of duty and proper adjudication under law and such escapement was within their exclusive and special knowledge for which they were brought to the fold of law.
4.6 One Afghan National named Mamoor Khan, S/o Haji Alam Jann bearing Passport No. TR-036350 was the master mind behind the smuggling of Chinese silk textiles in India. Those goods came to India on the dates appearing in column A of Table 1 above through offender passengers named in column E thereof. Mamoor left India towards end of July 2000, assigning smuggling operation to Dil Agha. This fact came out from the statement recorded u/s 108 of the Act on 17-1-2001 from Sri R.N. Zutshi, a customs Officer [who was an appellant before Tribunal being involved in the smuggling racket and his appeal dismissed as reported in 2011 (265) ELT 243 (Tri-Del)]. He named Dil Agha as successor of Mamoor involved in the racket. He was in close contact with Sri Zutshi.
4.7 Mamoor Khan was staying in Sameer Guest House in Ballimaran, Delhi to operate the smuggling in India. His photograph obtained from FRRO was identified by Pawan Kumar, driver of M/s Sehrawat Goods Carrier (who was transporting the offending goods). In his statement dated 17th Dec, 2000, 18th Dec, 2000 and 22nd Dec, 2000, Abdul Qayum, Manager of Sameer Guest House identified photographs of Mamoor Khan as well as his Mobile No. 9811254485 used in smuggling operation. Vivid description about the activities carried out by Mamoor from the hotel and airport was given by him.
4.8 Sri Zutshi, the Customs Officer neatly described about Mamoor Khan and confessed that he had hand in glove with him as well as with other Respondent Officers of Customs to facilitate illegal clearance of the quantity and value of the offending goods as appearing in column B and C of TABLE 1 above brought by the offender passengers named in column E of TABLE -1 on different dates in consideration of illegal gratification. That resulted in loss of customs duty of the amounts depicted in column D of Table 1 above. They were constantly in touch telephonically with Mamoor as well as offender passengers before and after arrival of the flights bringing the offending goods to India. He identified Mobile No. 9811065897, land line 3930733 and Mobile No. 9811158376 used by Dil Agha during different periods in smuggling of the offending good. Dil Agha confirmed his intimacy with Shri Zutshi in his statement dated 23.05.2001 and brought out nexus of offender passenger viz., Olga K. Gulia etc., with Respondent Customs Officers who facilitated customs clearance of smuggled goods in consideration of ill gain.
4.9 Investigation unearthed evidence demonstrating conscious and active involvement of Respondent Customs Offices whose name appears in column F of TABLE 1 in clearance of smuggled goods of the quantity and value as depicted in that Table. Their negotiation and settlement with Mamoor Khan for payment of illegal gratification surfaced.
4.10 Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines in his statements dated 26-12-2000, 30-12-2000 and 1st Feb., 2001identified Mobile No. 9811135921 used by Mamoor Khan. These phones were used in smuggling operation to contact the offending passengers and respondent Officers. Involvement of Mamoor Khan in illegal import of Chinese silk fabrics and use of Mobile No. 9811135921 by him was also confirmed by Purshottam Lal Tandon of M/s Ushanak Mal Moolchand, Kaarol Bagh, New Delhi in his statement dated 30th Dec, 2000. Sri Dhaman also stated in his statement u/s 108 of the Act that mamoor mentioned him during November December 1999 that shift ki guarantee par hee mall mangwata hoon and Assistance Commissioner Gupta ki shift bahut kharabhi aur Sharma Superintendent, Bajaj aur Reddy ki shat achhihai 4.11 Sequel to the above, Pradeep Singh Dhamija of Anmeet Dupatta, 572 Katra Ashrafi, chandni chowk, New Delhi in his statement dated 3rd January 2001 confirmed the smuggling operation naming the offenders involved therein. Statement recorded on 5th Jan, 2001 from Arun Kumar Dokania, Gopal Prasad Dokania, Nitish Kumar Kedia, Anudeep Singh & Mahender Jain who were traders and dealt with the offending goods proved illicit import of the offending goods by offender passengers. Such goods were illegally cleared from airport by the Respondent Officers along with the other officers in collusion for which such goods reached Chandni Chowk for sale.
4.12 TABLES -7 appearing at page 128 of SCN shows number of telephonic contacts by Mamoor Khan on different dates with the concerned Officers of Customs. Some of such contacts with number of calls were: (1) to the phones of Kamal Bajaj 57 calls, (2) Praveen Kumar 21 calls, (3) Sudhir Sharma 103 calls, (4) TRK Reddy 123 calls, (5) Yash Pal 37 calls, (6) Rajesh Tomar 1 call, (7) R. K. Srivastava 7 calls, (8) Pradeep Rana 19 calls, (9) V K Khurana 49 calls, (10)P. M. Sharma 2 calls,(11) R.N. Zutshi 98 calls and to the phones of Respondent Officers (12) Neeraj Kumar 25 calls, (13) S. D. Rajpal 8 calls, (14) Yashvir Singh 4 calls, (15) V. K. Bharadwaj 1 call, (16) S. A. Lamb2 calls, (17) Kanwal Suman 1 call. All these calls were evident from call details obtained by investigation from telephone service providers.
4.13 TABLES -11 appearing at page 132 of SCN shows the time of telephonic contacts by Mamoor Khan with phones of the Respondent Officers e.g., Neeraj Kumar on 22.05.2000 (at Page 137 of SCN), on 19.06.2000 (at Page 138 of SCN), and on 01.07.2000 (at Page 139 of SCN). Similarly telephonic contacts by Dil Agha with the Respondent Customs Officer S. D. Rajpal on 04.08.2000 (at Page 144 of SCN). The offender passenger Kozireva had telephonic contacts with the Respondent Officer S. D. Rajpal on 04.08.2000 (Page 144 of SCN), S A Lamb on 18.08.2000 (at Page 146 of SCN) and with V K. Bharadwaj on 18.8.2000 (at page 146 of SCN).
4.14 TABLE 12(at page 150 to 154 of SCN) shows that the Respondent Officers Neeraj Kumar, Yashvir Singh admitted 4 calls exchanged between him and with Ms. Olga. K.S. A. Lamb admitted to have 2 calls exchanged between him and Olga K, Kanwal Suman admitted exchange of 1 call with Olga K., S D Rajpal admitted to have 6 calls exchanged between him and Mamoor Khan and 2 calls exchanged between him and Olga K. They also identified their telephone numbers which were used in smuggling for contacts.
4.15 TABLE -7 , 11 AND 12 to the SCN read with the statement recorded from R. N. Zutshi as is apparent from Para 79 at page 44 of SCN unerringly demonstrated telephonic contact of Mamoor Khan, Dil Agha, offender passengers with the Respondent Officers and contacts by such Officers with them. The mobile and land line phones used by the Respondent Officers and different persons as discovered by Investigation are tabulated in TABLE 2 below. The mobile and land line phones used by offending passengers and racketeers are depicted in Table 3 as under:
Table - 2 Sl. No Name designation of the Respondent Officers and period of duty in Airport Dates on which Respondent Officer was involved in abetment of clearances of offending goods as per TABLE -14 of SCN Mobile Number/Land Line used by Respondent Officer to make contacts Whether the Respondent Officer was named by any body Contacts by persons to phones of Respondent Officers (Ref: TABLE 7 OF SCN)
1.
Kamal Bajaj Preventive Officer October 1997 to 26.5.2000 01.02.2000 9811083679 (M) Used from early 1999 to late 2000 Res:5543459
2. V.S. Teotia Preventive Officer June 1998 to 5.7.2000 27.02.2000 17.04.2000 15.05.2000 10.07.2000 R. N. Zutshi
3. ParveenTeotia Preventive Officer Last week of June 1998 to 5 th July 2000 27.02.2000 17.04.2000 9810041291 (M) R. N. Zutshi
4. J.A. Khan Baggage Officer 27.02.2000 17.04.2000 R. N. Zutshi
5. Vinod Kumar [Kain] Preventive Officer 09.07.1997 to November 2000 15.05.2000 24.07.2000 01.08.2000 R. N. Zutshi
6. R.K. Dakolia Protocol Officer May 1998 to Sept 2000.
15.05.2000 10.07.2000 R. N. Zutshi
7. A.K. Varshney Protocol Officer 25.06.1998 to 05.07.2000 15.05.2000 10.07.2000 Res: 6984235 R. N. Zutshi
8. D.S. Nanadal Superintendent 15.05.2000 10.07.2000 R. N. Zutshi
9. Neeraj Kumar Preventive Officer 22.06.1998 to July 2000 22.05.2000 01.07.2000 9811009428 (M) Mamoor Khan 25 Calls Table -7 on 22.05.2000,19.06.2000 and 01.07.2000 Olga K. (Table -12)
10. Yashvir Singh Superintendent 24.07.2000 9811085897 (M) Mamoor Khan 4 Calls Olga K (Table -12)
11. KanwalSuman Inspector/Protocol Officer 24.07.2000 01.08.2000 9811024767 (M) Res: 5596135 R. N. Zutshi Mamoor Khan 1 Call Olga K. (Table -12)
12. S.D. Rajpal Inspector 04.08.2000 9811008819 (M) Mamoor Khan 8 Calls Dil Agha called on 04.08.2000 Olga K. on 04.08.2000
13. S.A. Lamb Preventive Officer 18.08.2000 9810055243(M) Mamoor Khan 2 Calls Olga K on 18.08.2000
14. V.K. Bharadwaj Superintendent August 1999 to July 2000 and from July 2000 in Baggage section 18.08.2000 9810032247 (M) Res: 7102235 Mamoor Khan 1 Call Olga K on 18.08.2000 TABLE - 3 PHONES USED BY OFFENDER PASSENGERS AND RACKETEERS IN SMUGGLING Name of the Passenger Phones used Olga K. 98102 22162 (Airtel) Activated from 03.03.2000 Shalo 9811007003 Nazira 98111 92565 from 11.6.2000 98112 65609 used on 30.8.2000 PHONES USED BY SMUGGLING RACKEETERS Name of the smuggling racketeer Phones used Mamoor Khan 3959597 Installed in Sameer Guest House 9811135921 9811254485 Activated on 30.08.2000 3930733 Dil Agha 9811065897 3930733 98112 58376 operated from 31.08.2000 4.16 On 23.05.2001 (Ref: Para 163 at page 114 117 of SCN) Dil Agha confirmed involvement of Respondent Customs Officers in the smuggling racket and on 12.07.2001(Ref: Para 162 at page 112-113 of SCN) he stated that Respondent Customs Officers were bribed to make clearance of the smuggled textiles. He was arrested and produced before Metropolitan Magistrate, Delhi on 16.07.2001 for the offence committed as reported in DLT 762, 2001 (59) DRJ 421 against his bail application. Statement of Dil Agha also brought out that Mamoor Khan was intimately connected with Ms. Olga Kozireva who was staying in Sameer Guest House as well as his connection with the Respondent Officers.
4.17 One Abdul Qahar who was also a member of smuggling racket was detained in COFEPOSA by order dated 29-01-2001 being involved in smuggling as reported in 2002 III AD Delhi 380, 2002 Cri LJ 1709. Statement recorded from Waliullah on 19.05.2001 before Metropolitan Magistrate u/s 164 of Cr. P.C in State (CBI) V. Olga Kozireva and Others in RC No. 5/2011 revealed manner of disposal of smuggled goods.
4.18 Statement recorded from One Abdul Qahar on 29-1-2001 from Tihar Jail proved nexus of Mamoor Khan and Ms. Olga as well as his stay in Sameer Guest House including his connection with Dil Aga. Print-out relating to call details of offending telephones used by the members of smuggling racket including the Respondent Customs Officers as tabulated hereinbefore proved contacts of each other and no reason was assigned by the Respondent officers in defense against such calls. That became cogent and credible evidence to proceed against them.
4.19 Details of the telephone calls between the members of the smuggling racket and Respondent Officers as appearing in TABLES - 7, 11 and 12 to the SCN proved regularity and frequency of the calls bringing out malafide of the conversation and modus operandi of the racket. Revenue was prejudiced by their concerted effort. Duty evasion occurred on different dates as appearing in column D of Table 1 aforesaid. Respondent Officers without abstaining themselves from illegal clearance of smuggled goods joined their hands with the racket consciously for their ill gain as discovered by investigation.
4.20 Copies of Passenger manifest obtained from Kyrgyzstan Airlines showed the quantity of silk fabrics illegally imported to India by offender passengers on different dates appearing in Table - 1 above. Such goods escaped adjudication under the Act to the extent depicted in that Table. On the basis of inquiry conducted from the Airlines, quantity and value of such goods as appearing in the table was determined and duty evasion thereon detected.
4.21 Statement recorded from Shri R.N. Zutshi on 17/01/2001 was one of the crucial and material evidence exposing the racketeers and Respondent officers including their modus operandi followed by clearance of the smuggled goods without payment of duty and escapement of adjudication. Their close association sabotaged Revenue. Sri Zutshi along with his associate Respondent officers was party to the settlement of illegal gratification as was revealed by him, Dil Agha and other Respondent Officers in their statements. They had close understanding and conversations with the following members of the smuggling racket depicted in TABLE - 4 below and facilitated clearance of smuggled goods on different occasions without payment of duty and proper adjudication:
TABLE 4 NUMBER OF TELEPHONE CALLS MADE BY SMUGGLING RACKET TO THE RESPONDENT OFFICERS AND THE MEMBERS OF THE RACKET Name of the person with whom conversation was made No. of occasions of contact Period of contact Mamoor Khan 62 occasions Between 1-4-2000 to 25-7-2000 Dil Aga 18 occasions Between 7-5-2000 to 28-10-2000.
Ms. Olga 6 occasions Between 3-2-2000 to 28-8-2000 Nazira 2 occasions 30th August, 2000 Dil Aga 10 Occasions
5 Onwards.
4.22 Use of mobile phones for clearing smuggled goods in association with Mamoor Khan and Dil Agha was brought to record by investigation as is evident from the Tables 7, 11 and 12 to the show cause notice as well as Table 2 to 4 aforesaid. This corroborated with oral evidence of Sri R N. Zutshi who clearly stated that Sri Praveen Teotia, V. S. Teotia, Vinod Kumar Kain, Yashpal use to talk to the Protocol Superintendents and Officers regarding smooth clearance of cloths of Mamoor Khan brought by the offender passenger Ms. Olga K. and her party. It was also stated by him that Sri Subhash, P. S. Meena, Sri T. R. K. Reddy, Sri Ajay Yadav, and Sri V. K. Khurana, Sri Praveen Teotia, Sri J. A. Khan, Sri V. S. Teotia, used to decide the money to be charged from Mamoor Khan. He further stated that Yashpal, Vinod Kumar Kain, V. S. Teotia, R. K. Dacolia, A. K. Varshney, Sri D. S. Nandal used to decide the quantum of illegal gratification to be charged from Mamoor Khan in consideration of clearance of smuggled goods. During July 2000 rotation, Sri Vinod Kain from Preventive, Sri Kanwar Suman and Sri T. R. K. Reddy, Protocol Officers and Anil Madan, Superintendent used to talk each other and decide about the clearance of goods of Mamoor Khan.
4.23 Testimony of Sri Zutshi revealed that adjudication proposals for lower quantity than the goods arrived at the Airport were placed on record by different respondents. He confirmed collection of illegal gratification by Sri V. S. Teotia, Yashpal and Vinod Kumar Kain from Mamoor Khan and 60% of the collection used to go to Preventive and rest of the same was shared among baggage Officers. Distribution of that money to Officers and Baggage staff was used to be done by Sri D. S. Nandal, Superintendent Sri T. R. K. Reddy and V. K. Khurana and Ajay Yadav Superintendent, or Anil Madan, Superintendent and T. R. K. Reddy or R. K. Dacolia and A. R. Varshney and Kanwal Suman on different shifts. It was further stated by Sri Zutshi that during Oct 1999 rotation, Sri Subhash and J. A. Khan used to distribute the share of baggage Officers and Superintendents. He quantified the negotiation money for small bags and big bags and his share in the money collected from Mamoor Khan.
4.24 Sri Zutshi identified the mobile phone numbers of Sri T. R. K. Reddy, V. K. Khurana, Yashpal, KanwalSuman, S. D. Rajpal, Yashvir Singh which were found by Investigation being used in smuggling. That could neither be ruled out by these respondents nor proved to be unconnected with smuggling activity except their pretence of innocence. Evasive replies were given by them to mislead investigation. Respondents failed to rule out their close proximity and intimate connection with the smuggling racket. That brought out their alliance and they proved their exclusive knowledge. Their collusion, nexus and connivance could not be ruled out. Investigation countered their presumption of innocence by presumption of guilt from cogent and credible evidence gathered against them.
4.25 Table 13 (appearing at pages 157 to 161) in SCN brought out involvement of Respondent Officers: (1)J A Khan, (2) D S Nandal, (3) R K Dacoiya, (4) A K Varshney, (5) V S Teotia and (6) Praveen Teotia in clearance of smuggled goods. They were involved in negotiation and settlement of quantum of illegal gratification for illegal clearance on different dates.
4.26 Smuggling perpetuated for long time and the offending goods escaped levy of duty repeatedly causing serious loss to revenue. In Para 462 of the adjudication order exemplary event of 15-5-2000 was recorded describing how telephonic contacts made when the Flight landed at 9.51 A.M at the IGI Airport. Shri Zutshi talked to Mamoor Khan 4 times before the arrival of the Flight and 3 times after arrival thereof. Table 11 to the show cause notice at page 136 thereof exhibits that mobile phone of Mamoor Khan was in vicinity of IGI Airport, Delhi from 9.52 A.M. to 12.36 P.M. and such phone was in use for clearance of smuggled goods. Involvement of the respondent Officers as member of the team of smuggling could not be ruled out when they were beneficiary of ill gain.
4.27 Nexus, collusion and association of Respondent Officers with offending passengers resulted in free flow of smuggled goods and smuggling racket operated fearlessly for long time in India. Various cogent and credible evidences summarized aforesaid as well as governing facts and attendant circumstances brought home the Respondent Officers to charge under law. Para 76 and 77 of the impugned order reveals that print out of call detail gathered from Airteal and ESSAR proved use of offending telephones by Mamoor Khan, Ms. Olga, Ms. Shahlo, Dil Aga, Abdul Qayum, Ms. Nazira to contact the Respondent Officers of customs. Such Officers were also in contact with the offending telephones of the members of the smuggling racket. The Respondent Officers in this batch of appeal in collusion and concert with the racket caused loss to Revenue to the extent indicated in TABLE 5 below:
TABLE - 5 RESPONDENT OFFICERS CHARGED FOR CLEARANCES OF SMUGGLED GOODS OF DIFFERENT DATES Date arrival of smuggled goods & Flight Number Silk Textiles not declared and not assessed. In meters Value of silk Textiles not declared and not assessed In Rs.
Customs duty Evaded (In Rs) Passengers who made illicit import Officers who abetted A B C D E F 1-2-2000 KGA2001 22,272 15,14,474/-
9,26,858 Shakista K KamalBajaj, 27-2-2000 HY 151 26,159 17,78,785/-
10,88,616 Olga K and Shakista K V.S Teotia, ParveenTeotiaJ. A. Khan, 17-4-2000 HY 421 2,129 1,44,752/-
88,588 Olga K V S Teotia, ParveenTeotia, J A Khan.
15-5-2000 K2 545 25,630 17,42,840/-
10,66,618 Shahlo A VinodKumar(Kain), VS Teotia, RK Docoliya,AKVarshney, DS Nandal 22-5-2000 K2 545 18,296 12,44,155/-
7,61,423 Olga K Nazira I and Shahlo A Neeraj Kumar 1-7-2000 HY 429 8,220 5,58,946/-
3,42,075 Olga K Neeraj Kumar.
10-7-2000 K2 545 21,496 14,61,755- 8,94,594/-
Olga K V S Teotia, R K Dacoliya, A K Varshney, D S Nandal 24.7.2000 K-2 545 25,630 17,42,840 16,66,618/-
Mamoor Khan and Olga K Yashvir Singh, Vinod Kumar (Kain) and Kamal Suman 1-8-2000 PK 270 5,419 5,638 3,68,519 3,83,411 2,25,534/- 2,34,648/-
Olga K Nazira I VinodKumar (Kain), KanwalSuman, 4-8-2000 PK 270 3,934 6,040 3,35,485 4,10,744 2,05,317- 2,51,376 Olga K Nazira I SDRajpal 18-8-2000 PK-270 6,410 4,35,880 2,66,759/-
Nazira I S A Lamb, V K Bhardwaj 4.28 Statements of Mr. Zutshi was held by learned adjudicating authority to be credential following the decision in the case of Dy. Director of Enforcement, Madras v. A.M. Ceaser reported as 1999 (113) E.L.T. 804 (Madras), where the Honble High Court of judicature at Madras distinguished between the evidentiary value of confession under Section 164 of Cr. PC and Section 40(3) of FERA, 1973, corresponding to the provision of section 108 of the Customs Act, 1962. In that case acquittal of the accused by the lower court was reversed by the Honble High Court observing that retraction of confessional statement on the ground that it was recorded under threat and coercion does not help the cause of the noticee. It was held therein that : in this case, the petitioner would simply say that he was taken to the Enforcement Directorate where he was compelled to give the statement and the same was also written as desired by them and he had to sign on account of threat he would be handcuffed. For the simple reason that the accused person expresses threat and coercion from the officers of Enforcement Directorate, unless this threat and coercion appears to be true, the Courts are not bound to accept that explanation offered by the accused. (Emphasis supplied). But, learned Adjudicating Authority exonerated the respondent officer from charge for no rhyme or reason.
5. Ld. Adjudicating Authority also relied on the judgment of Honble Supreme Court in the case of Naresh J. Sukhwani v. UOI reported as 1996 (83) E.L.T. 258 (S.C.) wherein the Apex Court held that the statement made before the Customs officers is not a statement recorded under Section 161 of Cr. PC, 1973 and is, therefore, a material piece of evidence. That material incriminates the petitioner inculpating him in the contravention of the provisions of Customs Act, 1962. Credibility and evidentiary value of statement of Shri Zutshi was established and that remained un-rebutted. According to ld. Adjudicating Authority, if a person voluntarily admits his involvement without any threat, inducement or promises that constitutes the basis of finding him guilty. He held statement of Shri Zutshi crucial and material evidence against him and also against other respondent Customs Officers for which he was penalized Shri Zutshi in the adjudication, but let off the Respondent holding him not guilty.
6. On the aforesaid back ground and common material facts and evidence, considering pleadings of both sides and evidence, Customs Appeal No C-63/2008 of Revenue against the Respondent Officer Sri Vinod Kumar, is disposed by this common order dealing with the Misc. Application filed by the Respondent Officer as stated at the outset.
MISC. APPLICATION NO. C/M/69/2012 7.1Learned Advocate Shri B.L. Narasimhan, appearing in the appeal No. C/60 of 2008, 67/2008 and 68 of 2008 led by other counsels in different appeals, challenged maintainability of appeals of Revenue through a batch of Misc Applications advancing argument that review made under section 129 D of the Act by the Committee of Chief Commissioners does not show that the impugned order appealable was neither legal nor proper since power under that section is limited to the examination of legality and propriety of the order appealed. The Committee travelled beyond its jurisdiction without making above finding.
7.2 It was submitted that what is legal and proper was subject matter of scrutiny before the Apex Court in the case of Lachchman Das Vs. Santosh Singh reported in (1995) 4 SCC 201. Emphasizing Para 7 and 10 of the judgment it was argued that the tests of legality and propriety should meet certain attributes of law. Similar such expressions having been used in Customs Act 1962, in absence of categorical findings to that effect the order appealed shall neither be legal nor proper. Therefore appeals of revenue are not maintainable. Reliance was placed on the decision reported in 1996 (84) ELT 34 (Tribunal) and also on the decision of Honble High Court of Gujarat reported in 2008 (232) 775 (Guj.) to support the argument.
7.3 Above arguments were adopted by Shri Bipin Garg, Advocate appearing on behalf of the Respondents in C/63/08, C/64/08, C/66/08 and C/69/08. Ms. Reena Rawat, learned Advocate appearing on behalf of the Respondents in appeal case No.62/08, 64/08, 70/08, 71/08 and 72/08 on the instructions of her senior Shri Piyush Kumar, Advocate also adopted above arguments. Similarly on behalf of Shri Kamal Bajaj in Appeal Case No.C/59/08, Shri Prem Ranjan, ld Advocate subscribed to the arguments advanced by Shri Narasimhan.
8.1 Revenue represented by Shri Govind Dixit, ld. A.R, per contra, submitted that the matters before the Honble High Court of Delhi in the batch of appeals disposed on 23.5.2011 were appeals which arose out of decision of Tribunal reported in 2011(265) ELT 243 (Tri.-Del). Consequent upon remand of those appeals to Tribunal, character thereof remain unchanged and that remain as appeal only before Tribunal lawfully made by Revenue. Such appeal calls for disposal on merit without hearing any preliminary objection in absence of direction of Honble High Court of Delhi in that behalf. Honble High Court did not find any legal infirmity in the Revenues appeals made originally. Therefore Respondent applicants should not go beyond direction of Honble High Court.
8.2 Inviting attention to the last sentence of the first paragraph of the order dated 23.05.2011 of Honble High Court appearing at page 2 thereof, ld. DR submitted that emphasis by Honble High Court was on appeals. Drawing attention to page 3 of the said order, he submitted that the Respondents, who were before the Tribunal were appellants before the Honble High Court and Honble Court has taken cognizance of the order of authorization passed by the Committee of Chief Commissioners of Customs, which is apparent from pages 3 and 4 of the High Courts order dated 23.5.2011.
8.3 According to ld. DR, Review Committee had taken appropriate decision for which the appeal came up before the Tribunal and decision in such appeals were carried to Honble High Court by the Respondents. Therefore, there should not be any fiction or confusion by Respondents at this stage since Tribunal has no power to touch the observations of Honble High Court but should only carry out all the directions of the Honble Court.
8.4 Placing further emphasis on page 4 of the Honble High Courts order, on behalf of Revenue, ld. DR submitted that appeals of Revenue were before the Tribunal which was allowed by Tribunal for which Honble High Court entertained appeal of respondent. Even in the said page, while the matter received consideration of the Honble High Court, it has been categorically recorded by the Honble court that the Respondents before the Tribunal were Appellants before the Honble Court. Relying on the following part of the Honble Courts order, ld. DR submitted that the reason of remand by Honble Court was to consider merit of each case by Tribunal without going into the maintainability aspect not directed by Honble High Court:
From what we have indicated above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to the 14 customs officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua these 14 customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would endeavor to dispose of the same within six months. Parties shall appear before the Tribunal on June, 13, 2011. [Emphasis supplied] 8.5 According to Revenue, in view of the order of the Honble Court, Tribunals jurisdiction in these appeals is limited to deal with merits of each case without entertaining Misc. applications of Respondents. This is the only necessity by the order of the Honble High Court in terms of page 6 thereof. Drawing further attention to the order of the Honble Court, it was submitted that there were 14 appeals before the Honble Court which arose out of appeal order of the Tribunal when first sentence of the order of the Honble Court is read. Remand has conferred jurisdiction on the Tribunal to decide the appeals on merit of each case but not to go beyond that.
8.6 It was further submitted by Revenue that in terms of order of Honble Court, order passed by Committee of Chief Commissioner remained un-impaired and terms and expressions used in a statute is to be looked into in the context that is used and in terms of the remedy prescribed by that statute. Revenue is not made remediless by law by a hyper technical argument advanced by respondents. So also terms and expressions used in one statute does not prevail over other statutes ignoring the context in which such terms and expressions are used in the respective statue. Therefore all Misc. Applications of Respondents are liable to be dismissed. Apex Court in Para 9 of the decision reported in 2001 (133) ELT 257 (SC), has laid down the law that remand does not enlarge scope of consideration beyond direction.
8.7 Shri Pathak, ld. DR on behalf of Revenue emphasized that Section 129 D of the Act has mandate that satisfaction of the Committee as to prejudice caused to Revenue by the order sought to be appealed is requirement of law to entertain appeal of Revenue by Tribunal. That being requirement of law, Honble High Court has not found fault with the satisfaction of the committee directing a subordinate officer to file appeal on the points referred by the committee before Tribunal for its decision on merits of each appeal without going into the manner of taking decision by the Committee of Chief Commissioners. Decision of the Committee required under law is to be understood by a totality of reading of the order of the committee showing its satisfaction for seeking appeal remedy by Revenue. Mere absence of words neither legal nor proper in the order of the Committee does not make Revenue remediless and no hyper technical reading of Review order is desired by law.
8.8 Shri Amresh Jain, ld. DR arguing further for Revenue submitted that revision, review and appeals are distinct remedies provided under law. There is no confusion to understand character of each remedy. Committee took conscious decision u/s 129 D of the Act to file application before Tribunal so as to seek remedy of appeal in terms of Section 129A of the Act since interest of Revenue was prejudiced. Application was thereby made which was treated as appeal by Tribunal in the first round of litigation for which there was no objection at all by any of the Respondents. Therefore jurisdiction if not challenged at the first instance that cannot be challenged after the matter came back from Honble High Court for rehearing on merit only.
8.9 It was further submitted that the review contemplated by Section 129D is an administrative exercise to examine appealability of the impugned order so as to safe guard interest of revenue. A hierarchy has therefore been prescribed to do such exercise. Points for decision by Tribunal are scrutinized by that set up to enable Revenue to make application which is treated as appeal by Tribunal to decide the points referred to it. Review order through different paragraphs show that order appealed against 14 Respondents was neither proper nor legal. Therefore Tribunal should not waste its time in the Misc Applications made by Respondents. It should dispose each appeal on merit as directed by Honble High Court. The application of revenue made upon direction of the Committee under section 129 D of the Act cannot be read in the manner the Respondents suggest to the Tribunal since no power of Review is vested on the Committee by that section except reaching to a satisfaction to prefer appeal. Revenue has also not filed any review application before Tribunal since Tribunal has appellate jurisdiction only. Therefore law requires appeal remedy only to be sought before Tribunal.
8.10 Summarizing the arguments, ld. JCDR Sri Promod Kumar submitted that Section 129 D has prescribed a procedure for decision to file appeal by department by way of an application with the guidance of Committee of Chief Commissioners so as to protect interest of Revenue. It is hierarchical scrutiny prescribed by a set of procedural law to examine the orders sought to be appealed whether has prejudiced Revenue and appeal should be preferred thereon before Tribunal. Accordingly Revenue should not be denied appeal remedy by misconstruction of law as suggested by respondents. When the Adjudicating Authority in the present case, ignoring preponderance of probability and weighty evidence available on record, has failed to do justice to Revenue, prejudice was caused to it by his decision. Accordingly appeals of Revenue deserve consideration following direction of Honble High Court.
8.11 It was further emphasized by learned JCDR that Revenue came in appeal before Tribunal in this batch of appeal due to no legal and proper order passed by learned Adjudicating Authority in respect of present respondents. Tribunal is expected to consider the anxiety expressed by the Committee against adjudication in different paragraphs of the order. That self speaks that the order appealed was neither legal nor proper in so far as these respondents are concerned. The Committee required filing of applications in each case which were treated as appeal by Tribunal. A fair reading of the order of the Committee of Chief Commissioners enables to construe that remedy of appeal alone was sought by Revenue. The term may used in Section 129 D of the Act even entitles the Committee to call for the record suo moto for examination so as to satisfy whether order of authority below needs remedial measure. Accordingly, his emphasis was that appeals were filed lawfully and the Committee did not travel beyond its jurisdiction, objection of Respondents being devoid of merit are to liable to be dismissed following direction of Honble High Court to dispose each appeal on merit.
9. In reply to the submissions of Revenue, it was argued on behalf of the Respondents that question of maintainability of an appeal may be raised at any stage, when that goes to the root of the matter. Reliance was placed on the ratio laid down by the Apex Court in Kiran Singh & Others AIR 1954 SC 340. Reliance was further placed by respondents in the case of Orient Paper & Industries Ltd. and Another reported in (1998) 7 SCC 303 to explain that when a matter goes to the root of maintainability of an appeal, that can be raised at any stage of the proceedings including the stage of execution of a decree. Objecting to revenues argument that meaning of a term under one statute shall not have application to another statute, respondents submit that it was not their arguments that definition is to be adopted but ratio laid down by Apex Court on the point of law to be applied.
10.1Heard both sides.
10.2 Since appeals of the Respondents were remanded by Honble High Court for disposal afresh on the basis of merits and evidence of each case, it was considered proper to decide the Misc. Applications at the time of disposal of appeal. Accordingly that is disposed by this common order.
10.3 Right of appeal under section 129A of the Act is statutory remedy against wrong done to the aggrieved. Revenue is vested with such right u/s 129A (2) of the Act to seek appeal making an application to the Tribunal against an order or decision of an adjudicating authority or Commissioner (Appeals) on the point or points on which Committee of Commissioners or Chief Commissioners direct an authority below u/s 129D of the Act to make such application to the Tribunal which is treated as an appeal by Tribunal under the Act. The provision granting right of appeal to Revenue is enacted in section 129A of the Act which reads as under
SECTION 129A. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -
(a) a decision or order passed by the Commissioner of Customs as an adjudicating authority
(b) an order passed by the Commissioner (Appeals) under section 128A;
(c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day :
Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, -
(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder :
Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where
(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or
(ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees.
(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section.
(1B) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act.
(ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Customs or two Commissioners of Customs, as the case may be.
(2) The Committee of Commissioners of Customs may, if it is of opinion that an order passed by the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day, or by the Commissioner (Appeals) under section 128A, is not legal or proper, direct the proper officer to appeal on its behalf to the Appellate Tribunal against such order.
Provided that where the Committee of Commissioners of Customs differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Customs who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct the proper officer to appeal to the Appellate Tribunal against such order.
Explanation.For the purposes of this sub-section, jurisdictional Chief Commissioner means the Chief Commissioner of Customs having jurisdiction over the adjudicating authority in the matter.
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs, or as the case may be, the other party preferring the appeal.
(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of,
(a) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;
(b) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;
(c) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees :
Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).
(7) Every application made before the Appellate Tribunal,
(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or
(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees :
Provided that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Customs under this sub-section.
10.4 Section 129D of the Act has prescribed the process of ascertaining the point or points on which Revenue may seek decision of the Tribunal in appeal. Such process neither involves exercise of power of Review nor revision by a Committee recognized by law in this behalf. Administrative exercise is only done by the Committee to preliminary satisfy that the order passed by the adjudicating Commissioner or Commissioner (Appeals) is neither legal nor proper. If it is not satisfied, it ascertains such point or points on which decision of Tribunal is desired. The said section reads as under:
SECTION 129D. Powers of Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order.
Provided that where the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the Commissioner of Customs, it shall state the point or points on which it differs and make a reference to the Board which, after considering the facts of the decision or order passed by the Commissioner of Customs, if is of the opinion that the decision or order passed by the Commissioner of Customs is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order.
(2) The Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any officer of Customs subordinate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order.
(3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the Commissioner of Customs , makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of one month from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so far as may be, apply to such application.
10.5 The nature of the power conferred on the Committee of Chief Commissioner is well conceivable from the law enacted in section 129 D of the Act. It is neither power of review nor revisionary. The Committee is only an administrative set up without any judicial power conferred on it by law. Its authority is confined to issue administrative direction to subordinate authority to seek appeal against the point or points arising out of an order of a Commissioner considered neither legal nor proper, for determination of such point or points by Tribunal. The authority so vested on the Committee is to avoid filing of frivolous or unnecessary appeals by Revenue and no process of law is abused. In short, if an order passed by an adjudicating Commissioner or Commissioner (A) is contrary to law, appeal there on is filed by Revenue upon direction by the Committee.
10.6 There being only remedy of appeal prescribed by law against an order passed by adjudicating Commissioner or Commissioner (A), no other authority below Tribunal is vested with the power of review or revision of the order appealed to Tribunal. Accordingly, exercise of Review power by the Committee of Chief Commissioner u/s 129 D of the Act is inconceivable. Submission of the Respondent that the order passed by the Committee of Chief Commissioners was in exercise of power of review by that Committee is baseless and devoid of merit. When no power of Review is exercisable by the Committee, it is not expected that the Committee is required to examine the order appealed with the characteristics of legal and proper prescribed by the decision in Lachman Das case (supra).
10.7 The decision in Lachman Das case (supra) related to a matter before a Revisionary Court but not before a committee of the nature and stature prescribed by section 129 D of the Customs Act, 1962. Further, the decision in that case arose under the Haryana Rent Control Act which did not provide second appeal remedy against the order passed in appeal by the appellate authority under sub-section (2) of section 15 thereof. Consequently that Act provided remedy of revision to the High Court against an order passed or proceedings taken under that Act. But under Customs Act, 1962 appeal remedy being available to Tribunal against an order of a Commissioner, no authority below Tribunal is empowered under law to review such order. This clearly shows that the committee was therefore not empowered to exercise any power of Review under section 129 D of the Act, except forming an opinion that the order sought to be appealed is neither legal nor proper.
10.8 It may be stated that while exercising revisionary jurisdiction the attributes of legality and propriety of an order is intended to be tested under Haryana Rent control Act. Therefore it cannot be presumed that the Committee set up u/s 129 D of the Act has same power of revision or review to test legality and propriety in the sense Haryana Rent Control Act has intended. Exercise of power is always governed by the nature of remedy prescribed by law. Express grant of statutory power is sine qua non for exercise of revisionary jurisdiction and in absence of such grant, nothing can be implied or inferred.
10.9 An appeal is a continuation of a suit or proceeding wherein the entire proceedings are again left open for consideration by the appellate authorities which have the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the Revisional authority may have, it has no power to reassess and re-appreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision.
10.10. Sub-section (6) of Section 15 of the Haryana Rent Control Act, conferred revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceeding taken under the Act to admit a revision empowering the High Court to pass such order in relation thereto as it may deem fit. The High Court was required to interfere with the order in revision if it finds that the order of the appellate authority suffer from a material impropriety or illegality. From the use of the expression legality or propriety of such order or proceedings occurring in sub-section(6) of Section 15 of the Act, the revisional power of the High Court under that Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognized principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so, unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appeal to be unjust, there should be no interference. Therefore the expression legal and proper being used in the context of exercise of Revisional power by High under the Haryana Rent Control Act, the Respondent misplaced the citation and fail to gain benefit of that judgment in absence of review or revisional power conferred on the Committee of Chief Commissioners. It may be stated that Review literally and even judicially means re-examination or reconsideration of evidence which not the object of section 129 D of the Customs Act, 1962. Basic philosophy inherent in Review is the universal acceptance of human fallibility - S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595.
11.1 Right to appeal being a statutory conferment by section 129 A of the Act, it is undeniable to an aggrieved. Such a right is also substantial and no procedure shall be tyrant to abrogate such right. Accordingly the procedure prescribed by section 129D of the Act by no means can be construed to defeat the right of appeal vested on Revenue u/s 129A of the Act. Apex Court in the case of Collector V. Rohit Pulp Paper Mills 1998 (101) ELT 5 (SC) held that the provisions of section 35B (2) clearly require formation of the opinion by the Collector that the order against which the appeal is to be filed is not legal or proper and direction to any Central Excise Officer to file an appeal is prerequisite.
11.2 Tribunal not being vested with writ jurisdiction has no power to review the opinion of the Committee since the first stage of formation of opinion by the Committee is only necessity of section 129 D (1) of the Act following the ratio laid down in the case of Commr. Of C. Ex. Cus. Surat -1 Vs. Shree Ganesh Dyeing & Ptg. Works 2008 (232) ELT 775 (Guj). Tribunal may only ascertain factual compliance with the statutory requirement of section 129 D (1) of the Act. Therefore objection of Respondent that the committee has not examined the impugned order as to legality or propriety thereof is unsustainable in absence of power of judicial review vested on the Tribunal to review the opinion of the Committee. The Committee has not travelled beyond its jurisdiction. Respondent misplaced reliance on the decision in the case of Shree Ganesh Dyeing (supra). Reliance placed by Respondent in the case of B. Arun Kumar & Co. Vs Collector of Customs 1996 (84) ELT 34 (Tri) also is of no avail since that was on a different set of facts and on the question whether Board has passed order to seek appeal on extraneous or additional material. Respondent therefore fails on all counts of his objection and the Misc. Application being mis-conceived is dismissed.
CUSTOMS APPEAL NO. C/63/2008 SUBMISSIONS OF REVENUE 12.1It was submitted on behalf of Revenue that the respondent Shri Vinod Kumar (Kain) was brought to charge for the loss of duty caused by him on 10.07.2000, 20.07.2000 and 01.08.2000. Entire charge was also substantiated by cogent evidence proving abatement made by the respondent to clear the smuggled goods. His statement recorded on 12.02.2001 brought out his active role being in shift duty with Shri RN Zutshi on different dates including 10.07.2000. Shri Zutshi has categorically named this respondent in his statement dated 17.01.2001. He stated that this respondent was in conversation with Protocol Officers and Superintendents for clearance of the smuggled goods by the smuggling racket. He was a negotiator of the illegal consideration to be received against illegal clearance of smuggled goods. He was also settling the amounts to be charged from Shri Mamoor Khan during April, 2000 onwards. He was actually collecting the money from Shri Mamoor Khan as is revealed from Table-13 of Show Cause Notice.
12.2 The goods brought by the offender passengers of CIS country led by Ms. Olga, violating the provisions of Section 11 of Customs Act, 1962 rendered the same to be confiscated being prohibited one. This respondent having facilitated clearance of such goods abetted the smuggling racket to succeed in their mission without informing to the higher authorities. Therefore, he should be penalised.
12.3 Finally it was argued by Revenue that in view of aforesaid submissions and various evidence recorded in Para 4 above, appeal of Revenue may be allowed since adjudication was made on erroneous premises to exonerate the Respondent.
SUBMISSIONS OF RESPONDENT 13.1 Ld. Counsels Shri Piyush Kumar and Shri Prem Ranjan appearing on the last occasion of hearing submitted that this respondent was not at all involved in any clearance of smuggled goods and there was no phone contact made by him with the CIS country passengers. By merely basing on the statement of Mr. Zutshi, this respondent cannot be implicated to the charge and penalised. Ld. Adjudicating authority, therefore, rightly exonerated the respondent from the authority on the ground that there was no corroborative evidence to support the averments of Mr. Zutshi. Accordingly, there should not be any interference to the adjudicating finding made in favour of the respondent.
REPLY OF REVENUE AGAINST RESPONDENT OFFICER 14 In rejoinder, learned DR, on behalf of Revenue, submitted that when the Respondent had hand in glove with the smuggling racket for illegal consideration to cause prejudice to Revenue. He was co-sharer of illegal gratification settled by his team of Respondent Officers of Customs who were actively involved in clearance of smuggled goods. He was not innocent. He misled investigation without coming out with clean hands and made a futile exercise to get rid of the charge. His evasive reply proved his exclusive knowledge about smuggling and he acted malafide. His conduct was questionable. He was exonerated from charge under law under flimsy grounds and ill reason. Therefore the adjudication made in his favor deserves to be set aside and penalty imposed on him.
FINDING AND DECISION BY TRIBUNAL
15. Heard both side extensively on different occasions and perused the record.
16. Shri Zutshi in his statement dated 17.01.2001 stated that this respondent is one of the officers of preventive, who was negotiating with Mr. Mamoor Khan, and was settling the illegal gratifications payable in consideration of the clearance of smuggled goods. He was negotiator during April to July, 2000 and also during rotation from July, 2000 onwards (refer page 43 of O-I-O). 60% of the collected gratifications used to go to preventive staff and rest of the amounts were distributed among baggage officers.
17. The respondent in his statement dated 12.02.2001 stated that from 09.07.1999 to November, 2000, he worked in IGI airport as Air Customs Officer. He was in baggage section as well as preventive, courier and adjudication section. He confirmed his residential telephone number to be 6132115 and ruled out use of mobile phone. He also stated that he did not know Ms. Olga and her party. But, he described the nature of goods brought by the offender passengers to India. This shows his concern over the smuggled goods and his involvement with the smuggling racket. He also stated how these passengers were dealt with in the air port. But the Respondent pleaded his innocence as to his knowledge about Mr. Mamoor Khan, Mr. Dil Agha and Ms. Olga.
18. When the statement of Shri RN Zutshi was confronted to this respondent, he stated that April to July, 2000 rotation took effect in the beginning of May, 2000 and he was not involved in the clearance of the smuggled goods. He explained that on 12.06.2000, he was allotted duty at Gate No.8 (general duty) and he was not aware of anything happened in the airport. He stated that on 04.07.2000, his duty was to x-ray hand baggage of passengers and he has not come across with the alleged goods cleared without duty. He further stated that he was on duty at the gate on 10.07.200 and he simply showed his innocence about the clearance of the contraband goods or commercial items. But he narrated that a group of women coming from CIS country were bringing the smuggled goods.
19. Ld. Adjudicating authority stated in his order at page 277 that the only material against the respondent was the statement of Mr. Zutshi and about his negotiations and decisions on monetary consideration to be charged for the clearance of smuggled goods. But, there was no abatement committed by him in the absence of any corroborative evidence in the form of record of telephone calls.
20. The evidence appearing in different sub paras of Para 4 gathered by investigation and cumulatively assessed prove close association, involvement and concern of the Respondent Officer in the smuggled goods and facilitating clearance of different value and quantity thereof on different date as per TABLE 5 resulting in evasion of custom duty to the extent indicated therein. He was actively involved in commission of such offence as a party to the unlawful clearance of excess quantity of goods not finding place in the manifest on the day of his duty and also on different dates of duty of other Respondents in Table-5 above. The Respondent failed to rule out his active contact with the offender passengers since his call details proved his contacts and he had no explanation to be free from the charge of his contacts with the smuggling racket. He fabricated the story of use of his phone by other officer and failed to succeed in such attempt. His plea of innocence was turned out to be false.
21. Respondent Officer was posted in Airport for the period as aforesaid. His conversation with Mamoor Khan and Ms. Olga could not be ruled out by him. His conscious and deliberate involvement in contacting the offender passengers and the smuggling racket using the offending phones was proved and his concern with smuggled goods was not ruled out. He made all evasive pleas only to escape charge while cogent evidence gathered by investigation brought him to the charge under law. He could not dissociate his close association with the conduits of smuggling for clearance of the offending goods on different dates directly and indirectly. In absence of any cogent and credible evidence to discard allegations of investigation, Respondent submitted him-self to the commission and omissions under law.
22. Sri Ajay Dhiman, Traffic Supervisor of Kyrgyzstan Airlines stated in the statement recorded u/s 108 of the Act that Mamoor mentioned to him during November December 1999 that shift ki guarantee par hee mall mangwatahoon and Assistance Commissioner Gupta ki shift bahut kharabhi aur Sharma Superintendent, Bajaj aur Reddy ki shat achhi hai. This clearly proved who were conduits of racketeers and had hand in glove for illegal clearance of smuggled goods. This Respondent made first contact with Mamoor Khan on 25.10.1999.
23. Conspiracy was hatched by the Respondent Officer against Revenue as an abettor in association with the smuggling racket and facilitated clearance of the smuggled goods. He acted mala fide to make ill gain from illegal gratification. Import manifesto proved arrival of the offending goods on different occasions and the respondent was an abettor to make clearance thereof illegally in association with other Respondent Officers on the respective dates. Such fact was established from the evidence of Shri R.N. Zutshi, who has already lost his appeal before Tribunal in the decision reported in 2011 (265) ELT 243 (Tri-Del).
24. Members of smuggling racket disclosed identity of the Respondent Officer who was intimately and consciously connected with the commitment of the offence alleged against him. He was instrumental to make the smuggling successful on the respective dates as is apparent from Table 1 in consideration of illegal gratification. Trail of evidence discovered by investigation proved active involvement of respondent in abetting the commissions and omissions under the Act for which he is punishable since the goods imported were confiscable.
25. Smuggled goods reached destination thereof proving escapement of duty without proper adjudication due to abetment of the respondent Officer. Member of racket were unjustly enriched at the cost of Revenue for which the Respondent Officer is responsible and liable to penal consequence under the law.
26. Premeditated mind of the respondent officer was proved when he failed to report arrival of smuggled goods which exited freely from airport without levy of duty and proper adjudication. He merely pretended to be innocent and misguided investigation. As a co-sharer of illegal gratification, he proved to be guilty being member of the team of law evaders causing prejudice to Revenue.
27. Not only respondent Officer was telephonically contacted by the smuggling racket but he was also in call with them as is revealed from Table -2 and 4 and evident from respective sub para of para 4. His conduct was questionable and motive of ill gain came to record. He was not an innocent when he did not explain reasons of telephonic contact with smuggling racket. He also failed to bring the smuggling activity to the notice of higher authority. Smuggling perpetuated due to his deliberate silence. His role in facilitating clearance of smuggled gods from Airport without payment of customs duty and proper adjudication proved his concern with the smuggling of the offending goods and his intimacy with other members of the racket could not be ruled out as is revealed from the evidence recorded in Para 4 aforesaid and that remained un-rebutted.
28. While learned adjudicating authority used telephonic contacts, preponderance of probability as well as materiality of governing facts and attendant circumstances as guiding factors to hold many customs officers guilt, he exonerated this respondent Officer from charge for no rhyme or reason. He failed to appreciate that equal law applies equally and unequal law applies equally and telephonic contacts made by the respondent Officer brought him to the grave of the charge like other officers who were penalized in adjudication by such evidence.
29. It has been held by Honble High Court of Delhi in the case of Rajiv Kumar Sharma V. CCE, Adjudication 2012 (276) ELT 321 (DEL) that when the reason why telephonic conversation took place remained unexplained that does establish and corroborate a close relationship between the parties to the calls. The respondent failed to lead any cogent evidence and reason to explain why calls were made by him and also calls came to his phone as appearing in Table-2 and 4 afore said. Illegal clearance made on the respective dates brought the Respondent Officer to scrutiny of law. As a co-sharer of illegal gratification revealed by the associate Officer Shri R.N. Zutshi and others as well as Dil Agha and other members of smuggling racket, proved his association with the racket and he had questionable conduct. Echoing evidence discussed in para-4 hereinbefore, does not entitle the Respondent to be exonerated from charge. Discriminatory approach of the learned Adjudicating Authority vitiates the adjudication being irrational in so far as this Respondent is concerned.
30. It may be appreciated that no one contacts another without any intent good or bad or in vacuumed mind. His object of contact is well known to him and that is secreted in his mind till revealed by his action. In Para 28A of the adjudication order, frequent contacts made by Ms. Olga Kozireva through cell phones on different occasions to different persons came to light. Para 29 of the impugned order also brought out such fact from the statement recorded on 13-12-2000 from Shri Sandeep Bhatia, Security Representative of United Airlines India. Added to that, statement recorded from Shri Ajay Sharma, Security Representative of that Airline on 23-12-2000 proved that and corroborated by Shri Virender Sehrawat, Security Representative of United Airlines. In his statement dated 8-1-2001 he revealed the mobile numbers used by Ms. Olga Kozireva and Ms. Nazira Ibragimova. There was further corroboration from statement recorded on 3-12-2000, 26-12-2000 and 7-2-2001 from Shri Sunil Puri to this effect as apparent from Para 32 of the adjudication order. All these evidence established that Ms. Olga Kozireva and her party were actively and consciously in contact with the members of smuggling racket as well the team of Respondent Officers who facilitated clearance of offending goods on different quantities on different dates as per TABLE - 5. That remained un-rebutted by the respondent Officer and without being an innocent he proved his deliberate defiance of law. He merely pretended to be innocent giving evasive reply to investigation to mislead them.
31. The Respondent Officer was made charge free in adjudication on the ground that he was not in touch with Mamoor Khan and Dil Agha by cell phone. This is faulty. Shri R.N. Zutshi made investigation story believable and successful with full trail of evidence without any delink. Respondent was co-sharer of bribe money as per testimony of Shri Zutshi and others. He did not abstain him self from the ill gain but became beneficiary thereof along with other Respondent Officers. It was baseless conclusion of the learned Adjudicating Authority that mere contact with Ms. Olga was not sufficient evidence to penalize the Respondent Officer. The Authority also held that although certain contacts were made by the Officers with Ms. Olga on certain dates, on those dates, she was not the passenger bringing the smuggled goods. Such conclusion is of no avail when she was an offender passenger and leader of her party bringing offending goods along with other offending passengers and was in touch with the respondent Officers for illegal clearance of illicit imports backed by illegal gratification. Settlement terms stated by Shri Zutshi in his statement failed to be discarded by the Respondent Officer. When a person can be contacted by phone, his/her status, presence or absence at a particular place is immaterial to law. Material facts and cogent evidence discussed in para-4 hereinbefore demonstrate concern of the respondent in clearance of smuggled goods without payment of duty.
32. The term concerned appearing in section112 of the Act has been explained by Apex Court in the case of Sachidananda Banerji V. Sitaram Agarwala 1999 (110) ELT 292 (SC) laying down the law that this term is to be given wide interpretation and even if a person has no physical connection with the smuggled goods, he is liable if he is interested or consciously takes any steps to promote smuggling. In the present case, the respondent officer promoted smuggling having his conscious knowledge of the illegal import made to India on the respective date as mentioned in Table 1 with his ill motive to make ill gain. He was aware of the origin of the goods and provisions relating to EXIM policy prohibiting/restricting import of Chinese silk to India. But he had oblique motive behind clearance of the imports made by offender passengers when they brought commercial quantities with them and were in touch with the Respondent Officers for illegal clearance thereof. It has been laid down in the case of Bhagwan Swarup and Others V. State of Maharashtra - AIR 1965 SC 682 that an agreement between the conspirators need not directly prove the offence of conspiration which can be established by either direct or circumstantial evidence. It has been held by apex Court in the case of Radha Kishan Bhatia V. UOI 2004 (178) ELT 8 (SC) that it is immaterial what meaning be attributed to the word concerned. It can have the meaning interested and it may also have the meaning involved or engaged or mixed up.
33. Investigation discovering truth by extensive enquiry and brought out intimate connection as well as conscious involvement of the Respondent Officer to the illegal clearance of smuggled goods (Chinese silk) neatly and minutely by the evidence both direct and circumstantial. Respondent Officer acted to the detriment of interest Revenue as an abettor causing serious prejudice to it. He silenced himself without bringing out the materiality of smuggling to the notice of higher authority of Customs. Echoing evidence in para-4 on record established live link and intimate connection of the Respondent with the smuggling racket. When respondent Officer was guilty and failed to prove his innocence the adjudication inference drawn in favor of the Respondent Officer is contrary to law.
34. Preponderance of probability and testimony of Sri Zutshi vividly explaining the modus operandi of smuggling and abetment by the respondent officer, brought him to the fold of law. But learned adjudicating authority brushed aside the same drawing misplaced sympathy. Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it- all exactness is a fake. Absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent mans estimate as to the probabilities of the case.
35. The standard of proof in a civil case is preponderance of probabilities. In a civil case there is no burden cast on any party similar to the one in a criminal proceeding. Following the ratio laid down in CIT v. Durga Prasad More - 82 ITR 540, 545-47 (SC) it may be said that science has not yet invented any instrument to test the reliability of the evidence placed before a Court or a Tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to reliability of a piece of evidence. But in that sphere the decision of the final fact finding Authority is made conclusive by law. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. A fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favor of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. When learned Adjudicating Authority followed principles of preponderance of probability in other cases, his failure to follow such principle against the Respondent Officer makes his adjudication faulty in so far as this Respondent is concerned who is made charge free.
36. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered. In tax proceedings, Department is required to prove facts which are especially within the knowledge of the guilty officer. It is not obliged to prove them as part of its primary burden.
37. Escapement of excess baggage from levy of customs duty is practically not possible without hand in glove of the Respondent. Secrecy and stealth being covering guards of ill designed act, it is normally hardship for Revenue to unravel every link of the process. Revenue successfully corroborated mala fide of respondent when material facts relating to the ill design remained in the special or peculiar knowledge of the respondent officer.
38. When fraud surfaces, that unravels all. Revenues stand is fortified from the Apex Court judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. - 1996 (86) E.L.T. 460 (S.C.). So also fraud nullifies everything as held by Apex Court in CC v. Candid Enterprises - 2001 (130) E.L.T. 404 (S.C.) and in the case of Delhi Development Authority v. Skipper Construction Company (P) Ltd - AIR 1996 (SC) 2005. Escapement of offending goods from notice of Revenue was result of fraud by this Respondent against Revenue. The frauds committed by the perpetrators of the offence were in close connivance with the batch of Customs Officers with whom Respondent was associated. The Apex Court in the case of S P Chengalavaraya Naidu v. Jagannath - AIR 1994 SC 853 and in the case of Ram Preeti Yadav v. UP Board of High School and Intermediate Education - AIR 2003 SC 4268 has held that no court in this land will allow a person to keep an advantage which he obtained by fraud.
39. White collar crimes committed under absolute secrecy shall not be exonerated from penal consequence of law following Apex Court judgment in the case of K. I. Pavunny v. AC, Cochin - 1997 (90) E.L.T. 241 (S.C.). An act of fraud on Revenue is always viewed seriously. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.
40. It has been held by Apex Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) that by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by anothers loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1].
41. In leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes fraud was described thus: (All ER p. 22 B-C) fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [2002 (1) SCC 100] Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [2003 (8) SCC 311], Ram Chandra Singhs case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]. Suppression of a material fact or document would also amount to a fraud on the court (see Gowrishankar v. Joshi Amha Shankar Family Trust, [1996 (3) SCC 310] and S.P. Chengalvaraya Naidus case AIR-1994 SC-853. No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unravels everything and fraud vitiates all transactions known to the law of however high a degree of solemnity.
42. Evidence gathered by investigation unerringly proved that the respondent officer was a member of the abetting team of respondent officers and perpetuated smuggling. It is established principle of law that fraud and justice are sworn enemies. A person acting in defiance of law and without being vigilant has no right to claim innocence when he did not abstain himself from wrong doing against Revenue and caused prejudice to it. Accordingly conclusion of the learned Adjudicating Authority in favor of the Respondent officer is detrimental to the interest of justice.
43. There were cogent evidence gathered by investigation to appreciate malafide of the respondent Officer being in association with the smuggling racket and being familiar with the offending goods. Thus the Respondent cannot be made charge free when he had pecuniary interest in the smuggling which was not ruled out by him. That was proved from credible statements of Abdul Qahar, Wali and DilAgha as well as Sri Zutshi recorded by investigation discovering motive and truth of the deals. Their statements remained un-assailed. Respondent being posted at airport which is sensitive place of customs, cannot claim innocence when frequent flyer Olga K and her associates were coming to India on several occasions and that too with huge commercial quantity of offending goods. He was aware of the origin and destination of goods as well as quantity and value thereof being posted in sensitive place of Customs as a responsible officer under law.
44. Having been associated and colluded with the smuggling racket on the dates mentioned in TABLE - 5 aforesaid to satisfy his ill will being a co-sharer of illegal gratification and caused loss to revenue and his association with the racket proved from material facts and evidence discussed hereinbefore, the respondent failed to be a stranger to the incidence of levy and escapement of duty. He made deliberate breach of law. As perfect proof with mathematical precision in this imperfect world seldom exists, preponderance of probability was in favor of Revenue. Respondent was guilty of the offence committed by him.
45. Except raising technical pleas, the Respondent failed to detach himself from the team of guilty Officers and members of smuggling racket. His conscious involvement in abetment of clearance of the offending goods was proved. He was cause to the escapement of duty liability and adjudication of the offending goods. That occasioned the offending goods to reach the place of trading. Therefore he failed to go out of the scope of Section 112 (b) of the Act. Accordingly penalty is bound to be imposed on him without prejudice to any other consequence of law that may follow. It is only the quantum thereof that needs determination on the basis of gravity of the matter and depending on the number of occasions he was instrumental to the illegal clearances.
46. In view of the aforesaid discussion, material evidence and governing facts as well as law applicable, considering that the appellant was concerned with the clearance of the goods on all the 11 days as per column-1 of Table 5 Aforesaid caused loss of customs duty to the extent indicated in that table. Therefore in the fitness of the circumstances of the case, levy of penalty of Rs. 10,000/- for each such date would be justified. Accordingly, the Respondent should face aggregate penalty of Rs. 1,10,000/- Appeal of revenue is allowed to this extent.
(Pronounced in the open Court on ) (RAKESH KUMAR) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER PER RAKESH KUMAR:
1. I have gone through the orders in respect of the Revenues Appeals prepared by my learned brother. Since I do not agree with the conclusions arrived by him, I am recording a separate order.
2. These appeals have been heard for de-novo decision in pursuance of the directions of Honble Delhi High Court in its judgment dt. 23.05.11 in respect of Customs Appeal No. 11 & 13 to 25/2011 filed by the Respondents. Honble High Court while remanding 14 appeals filed by the Revenue to the Tribunal for de-novo decision has given the following directions:-
From what we have indicated above and going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each of these officers. It was for this reason that cases of all 22 Customs Officers were taken up and dealt with separately with reference to specific evidence which were put against each of these officers by the Adjudicating Authority. However, the CESTAT went ahead with the presumption that role of each officer was common, similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against the Law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to 14 Custom Officers/ appellants herein and remit the case back to the Tribunal to decide the appeals qua, these 14 Customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would dispose of the same within six months. Parties shall appear before the Tribunal on 13.06.2011.
3. The Commissioner by the impugned order, after considering the evidence on record against each officer who are the Respondents in this group of appeals, after considering their defence, exonerated them and has decided not to impose any penalty on them under section 112 of the Custom Act, 1962. This part of the order of Commissioner was reviewed by Committee of Chief Commissioners under section 129 D (1) of Customs Act, 1962 and the Committee directed the Commissioner to file Appeal against his order in respect of these 14 officers. Earlier, the Tribunal had allowed the Revenues appeals and had imposed penalty of Rupees one Lakh under section 112 of the Custom Act. 1962 on each of these 14 officers (respondents) of the respondent officers. On appeals being filed by these officers (respondents), Honble Delhi High Court by the order mentioned above has remitted the matter to the Tribunal for de-novo decision after considering the evidence against each respondent and his defense. Though my learned brother has dealt with the case against each respondent in a separate order, since the basic facts in this group of appeals are common and only the evidence on record against the Respondents and their defence in some cases is separate, I am passing a Common Order in which the evidence against each respondent, and his defence shall be separately discussed. Since the facts of the case and the arguments of the Revenue and the respondents have been discussed in detail in orders prepared by my learned brother, the same are not been repeated in this order.
4. The case in brief is that some Uzbek lady passengers namely Ms Olga Kozireva, Ms J-Nazira, Ms Kshakista, Ms A-Shahlo, Ms Merkulova and Ms Valichinco, while coming to Delhi from Uzbekistan by Kyrgyzstan Airlines were bringing huge quantity of Chinese Silk which was being cleared from the Customs without payment of Custom Duty and this smuggling was being organized by some Afghan Nationals namely Sh. Mamoor Khan, Sh. Dil Agha, Sh. Sanak Khan, Sh. Sadullah and Zanjir Khan who are alleged to be in connivance with some Customs Officers posted at the Airport namely Sh. Sudhir Sharma, Ajay Yadav, Sh. Yash pal, Sh. T.R.K. Reddy, Sh. R.N. Jutshi, Sh. V.K. Khurana, Sh. Pradeep Rana, Sh. Anil Madan, Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh Yashvir Singh, Sh. Kanwal Suman, Sh. S.D. Rajpal, Sh. S.A. Lamb and Sh. V.K. Bhardwaj. Besides this, there is also allegation of connivance of Sh. Mamoor Khan and Sh. Dila Agha and their associates with the officials of Kyrgyzstan Airlines. The next category of persons involved in this case are the Traders namely:- Sh. Mahendra Jain, Sh. Anudeep Singh, Sh, Gopal Dokania, Sh. Anup Singh, Sh. Nitin Kumar Kedia, Sh. Sanjeev Jain and Sh. Arun Dokania, who are alleged to have purchased the smuggled Chinese Silk from Sh. Mamoor Khan and Sh. Dil Agha, who, in term, had received the smuggled silk from the Uzbek lady passengers mentioned above and who are alleged to have been using the above mentioned Uzbek lady passengers as carriers of smuggled goods. The Commissioner while imposing penalty on the custom officers namely Sh. Sudhir Sharma, Sh. Ajay Yadav, Sh. Yash Pal ,Sh. T.R.K. Reddy, Sh. R.N. Zutshi, Sh. V.K. Khurana, Sh. Pradeep Rana and Sh. Anil Madan, had exonerated respondents in this group of appeals namely:- Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh. Yashvir Singh, Sh. Kanwal Suman, Sh. S.D.Rajpal, Sh. S.A. Lamb and Sh. V.K. Bhardwaj and did not impose any penalty on them. In this group of appeals we are concerned with the question of imposition of penalty on these 14 officers only. Each of these 14 officers is alleged to have abetted the smuggling activities of the Uzbek lady passengers on certain dates and the evidence in this regard in form of a Chart is summarized as under:-
S.No Name & Designation of the Respondent and period of posting at the Airport.
The date on which the Respondent is alleged to be involved in abetment of smuggling of Chinese Silk.
Mobile/Landline telephone no. used by the Respondent to make contact with alleged smugglers namely Uzbek lady passengers and Afghan Nationals namely Sh. Mamoor Khan & Sh. Dil Agha No. of telephonic contacts between Respondent and lady passengers/ Sh. Mamoor Khan & Sh. Dil Agha Whether the Respondent was named by anybody as the person who had abetted the smuggling of Chinese Silk by Uzbek lady passengers.
1. Sh. Kamal Bajaj, Preventive Officer, posted at Delhi Airport from Oct.97 to 26th May 2000.
01.02.2000 (Mobile) - 9811083679 (Land Line) - 5543459 56 telephonic contacts between officer and Sh. Mamoor Khan and one telephonic contact with MS Olga, the Uzbek lady passenger.
Not name by anybody.
2. Sh. V. S. Teotia- Preventive Officer posted at Delhi Airport from 1998 to 5th July 2000.
27.02.2000, 17.04.2000, 15.05.2000, 10.07.2000 (Landline) 6984235 A telephonic call on 09.05.2000 from landline phone installed at the residential premises which he was sharing with Sh. A.K. Varshney to the mobile No. 9811135921 of Sh. Mamoor Khan of about two minutes duration.
Name by Sh. R.N. Zutshi Preventive Officer in his statement recorded by DRI Officers wherein Sh. Zutshi has alleged that Sh. V.S. Teotia used to negotiate with Sh. Mamoor Khan regarding the money to be charged for facilitating the illicit clearance of the goods brought by Uzbek lady passenger.
3. Sh. Praveen Teotia, Preventive Officer, posted last week of June 1998 to 5th July 2000.
27.02.2000 17.04.2000 (Mobile) 9810041291 NIL Same as above
4. Sh. J.A.Khan Baggage Officer 27.02.2000 17.04.2000 NIL NIL Same as above
5. Sh. Vinod Kumar Kain Preventive Officer, posted from 09.07.97 to Nov.2000 15.05.2000 24.07.2000 01.08.2000 NIL NIL Same as above
6. Sh. R.K. Dacolia - Protocol Officer, May98 to Sept.2000 15.05.2000 10.07.2000 NIL NIL Same as above 7 Sh. A.K. Varshney Protocol Officer, Posted from 25.06.98 to 05.07.2000 15.05.2000 10.07.2000 (Land Line) - 6984235 A telephonic call on09.05.2000 from landline phone to mobile no. 9811135921.
Same as above 8 Sh. D. S. Nandal Superintendent 15.05.2000 10.07.2000 NIL NIL Same as above 9 Sh. Kanwal Suman Inspector/ Protocol Officer 24.07.2000 01.08.2000 (Mobile) 9811024767 (Land Line) - 5596135 One Telephonic each Contact with Mamoor Khan and MS Olga Same as above 10 Sh. Neeraj Kumar - Preventive Officer posted from 22.06.98 to July2000 22.05.2000 01.07.2000 (Mobile) 9811009428 25 Telephonic Contacts with Sh. Mamoor Khan Not named by anybody.
11Sh. Yashvir Singh - Superintendent 24.07.2000 (Mobile) 9811085897 4 telephonic contacts with Sh. Mamoor Khan & one with Sh. MS Olga Kozireva, the lady passenger.
Not named by anybody.
12Sh. S.D.Rajpal Inspector 04.08.2000 (Mobile) 9811008819 8 telephonic contacts with Sh. Mamoor Khan and one telephonic contact on 04.08.2000 with Sh. Dil Agha.
Not named by anybody.
13Sh. S.A.Lamb Preventive Officer 18.08.2000 (Mobile) 9810055243 Two telephonic contacts with Sh. Mamoor Khan and one with Olga Kezireva on 18.08.2000 Not named by anybody.
14Sh. V.K.Bhardwaj Superintendent posted from Aug.99 to Jule2000 18.08.2000 (Mobile) 9810032247 (Land Line) - 7102235 One telephonic contact with Sh. Mamoor Khan & one contact with MS Olga Kozireva on 18.8.2000.
Not named by anybody.
4.1 The Commissioner in the impugned order while observing that the standard of evidence required in quasi judicial proceedings under the Provisions of Custom Act, 1962 is preponderance of probability and not the proof beyond any reasonable doubt, has held that the evidence on record against these Respondents is not sufficient to establish the preponderance of probability in support of the allegation of abetment on smuggling against them and on this basis has dropped the penal proceedings against them. The Departments Review Appeal is on the ground that the evidence on record is sufficient to uphold the allegation of abetment of smuggling against the respondents for the purpose of imposition of penalty on them under section 112 of the Custom Act, 1962.
5. A common defence of each of these 14 Respondents is that these appeals have been filed by the Commissioner under section 129 D(4) read with Section 129 D(1) of the Custom Act, 1962 and while an Appeal under section 129 D(4) read with Section 129 D(1) can be filed against the Commissioners Order only if the order suffers from a material illegality or impropriety and such points of illegality or impropriety are mentioned by the Reviewing Authority in the order issued under section 129 D(1) for decision by the Tribunal, in the Order under section 129 D(1) passed by the Committee of Chief Commissioners the points on which the Commissioners order in respect of the Respondents is illegal or improper are not mentioned and hence these appeals by the Revenue are not maintainable. The Respondent citing the judgment of the Apex Court in the case of Laxman Dass Vs. Santosh Singh reported in (1995) 4SCC (201) pleaded that the appeal filed by the Revenue under section129 D(4) read with section 129 D (1) and 129 D (2) are in the nature of revision application whose scope is different from appeals filed under section 129 A(1) of the Custom Act, 1962 and while an appeal filed under section 129 A(1) is continuation of the original proceedings and the Appellate Authority re-evaluate the evidence and reexamine the points of law and can pass any order confirming, modifying or setting aside the findings of the Lower Authority in revision or Review proceedings, the Reviewing Authority/Revisionary Authority should not normally interfere with the findings of the Lower Authority and should interfere only if the Lower Authoritys order suffers from a material impropriety or illegality. Accordingly it has been pleaded that the Review of the Commissioners Order under section 129 D (4) read with section 129 D (1) cannot be sought just because on the basis of the set of facts, another view, different from the decision taken by the Adjudicating Authority, is possible. The Revenues contention is that once an order has been passed by the committee of Chief Commissioner (Reviewing Authority) under section 129 D (1) directing the Commissioner to file an application before the Tribunal for correct the determination of the points arising out of the order as mentioned in the Review Order and once in pursuance such an order passed under section 129 D(1), the Commissioner files an application before the Tribunal under section 129 D (4), in terms of the Provisions of Section 129 D (4) such an application is to be treated as an appeal filed before the Tribunal against the Commissioners order, and once the application filed under section 129 D (4) is treated as an appeal, no distinction can be made between such an appeal filed by the Revenue and the Appeal filed by the assessee under section 129 A(1). It was, therefore pleaded that the appeal filed by the Revenue under section 129 D (4) read with section 129 D(1) cannot be treated as a Revision Application. It was also pleaded that since this point was not raised in the first round of litigation before the Tribunal, the same cannot be raised in course of de-novo proceedings and the Tribunal should confine itself only to the points which are required to be examined in terms of the directions of Honble Delhi High Court in its order dt. 23.05.11. My learned brother in his order has not accepted this plea of the Revenue and has decided that the plea about maintainability of the Revenues appeal, which is sought to be made through Miscellaneous Application filed by the Respondent has to be considered. I fully agree with this view of my learned brother as the issue raised goes to the root of the matter and being a legal issue, it can be raised at any stage of the proceedings. However, my learned brother has expressed the view that the appeal by the Revenue under section 129 D(1) read with 129 D(4) is like any other appeal filed under section 129 A(1) and cannot be considered as revision application and that since an appeal is a continuation of the original proceedings wherein the entire proceedings are again left upon for consideration by the Appellate Authority which has the power to review the entire evidence subject to the prescribed statutory limitations, the plea of the respondents that in this group of appeals filed by the Revenue, the findings of the Original Adjudicating Authority based on his assessment of evidence cannot be interfered with, is not acceptable. He has also observed that:-
(a) The committee of Chief Commissioners referred to in 129 D(1) is only an administrative set up without any judicial power conferred on it by Law and its authority is confined to issue administrative directions to subordinate authority to seek appeal on the point or points arising out of an order of a commissioner on which the Commissioners decision is considered not legal or proper, for correct determination of such point or points by the Tribunal.
(b) The Authority so vested on the Committee is to avoid filing of frivolous or un-necessary appeals by the Revenue;
(c) The Committee of Chief Commissioner does not exercise any review power and when no review power is exercisable by the committee, it is not expected that the committee is required to examine the order appealed for legality or priority like a Revisionary Authority and;
(d) The Apex Court decision in the case of Laxman Dass Vs. Santosh Kumar (Supra) is, therefore, not applicable to this group of cases.
5.1 I do not agree with the above view of my learned brother for the reasons as discussed below:-
5.1.1 There is difference between an appeal under section 129 A(1) filed by a person aggrieved by the order appealed against, and an appeal filed by the Revenue. While appeal filed under section 129 A(1) by any person aggrieved by the order, is continuation of the proceedings before the Original Adjudicating Authority or the first Appellate Authority in which the findings of the Commissioner/Commissioner (Appeals) on any point of fact or the point of law with which the Appellant is aggrieved can be challenged, and in which the Tribunal as the Appellate Authority has to reconsider the lower authoritys decision/findings on all such points raised in the appeal, this is not so in case of appeal filed by the Revenue. As is clear from the wordings of Sections 129 A(2), the appeal against order passed by the Commissioner (Appeals) can be filed by the Authorised Officer only if the Committee of Commissioners is of the opinion that the order passed by the Commissioner (Appeals), is not legal or proper or if there is difference of opinion between Commissioners constituting the Committee, on reference made to the Jurisdictional Chief Commissioner, the Chief Commissioner is of the opinion that order passed by the Commissioner (Appeals) is not legal or proper. Similarly in terms of Section 129 D(1) read with Section 129 D(4), appeal against an order passed by the Commissioner as an Adjudicating Authority can be filed by the Revenue only if the Committee of Chief Commissioners constituted by the Board for this purpose has, within the stipulated time limit prescribed in Section 129 D(3) examined the record of the proceedings in which the Commissioner has passed the order as Adjudicating Authority and is of the opinion that the Commissioners order is not legal and proper or in case of difference between the two Chief Commissioners constituting the Committee, the Board, is of the view that the Commissioners order is not legal or proper and the Committee or as the case may be, the Board, has directed the Commissioner by an order specifying the points on which his order is considered to be not legal and proper, for filing an application to the Tribunal for correct determination of those points. In terms of the Provisions of Section 129 D(4), this application filed by the Commissioner before the Tribunal is to be treated as if it were an appeal against the Commissioners Order and since the Appeal has been filed only for correct determination of the point or points, as mentioned in the order passed by the Committee of Chief Commissioners/Board, in respect of which, the Commissioner decision, in the opinion of the Committee/ Board is not legal or proper, the scope of appeal which is to be decided by the Tribunal is confined only to the points of illegality or impropriety mentioned in the order passed by the Committee of Chief Commissioners/Board under section 129 D(1). Thus the scope of the Revenues appeal before the Tribunal filed under section 129A(2) or under section 129 D(4) read with Section 129 D(1) is confined only to the points of material illegality or impropriety in the order passed by the Commissioner of Customs (appeals) or Commissioner of Customs as Adjudicating Authority. This is more clear in case of appeal filed by Revenue against an order passed by Commissioner as an Adjudicating Authority, as from the language of Section 129 D (1) it is absolutely clear that the Committee or on the case may be, the Board while seeking review of the Commissioners Order, is required to point out the point or points on which accordingly to its view, the Commissioners order is not legal and proper and the application under section129 D(4) is to be filed by the Commissioner before the Tribunal only for correct determination of the points specified in the Committees/Boards Order. Now the questions arises as to what is illegality or impropriety. The illegality means an order being patently contrary to the Provisions of the Law or the order having been passed in gross violation of the principles of natural justice or having been passed by Commissioner/Commissioner (Appeals) by exercising powers outside his jurisdiction or going beyond his powers. An order would be illegal if on the basis of the facts on record and the provisions of laws only one view is possible and the adjudicating authority has taken a different view. If, however, on the basis of the facts on record and the provisions of law more than one plausible views are possible, and the adjudicating authority has taken one of such plausible views, the order cannot be said to be suffering from a material illegality. The impropriety means the order having been passed by the Commissioner totally ignoring some points of the facts or point of the law placed on record and which were not considered at all or the fine or penalty imposed is either far too low looking to the gravity of the offence or is highly disproportionate to the nature and gravity of the offence. In my view it is only such points of patent and material illegality or impropriety which can be raised in the appeals filed by the Revenue whether under section 129 A(2) on the basis of the authorization given by the Committee of Commissions/Chief Commission or under section 129 D (1) read with Section 129 D(4) on the basis of an order passed by the Committee of Chief Commissioner/Board. Just because the Committee of Commissioners /Jurisdictional Chief Commissioner, in respect of an order passed by Commissioner of Customs (Appeals) or Committee of Chief Commissioner/Board in respect of an order passed by Commissioner of Customs as an Adjudicating Authority takes a view which is different from the view taken by the Commissioner (Appeals) or the Commissioner of Customs, the Committee of Commissioners/ Jurisdictional Chief Commissioner or Committee of Chief Commissioners/Board cannot seek review of the order of Commissioner(appeals) or Commissioner of Customs by the way of appeal under section 129 A(2) or Section 129D(4) read with section 129 D(1), if the decision of the Commissioner (Appeals) or Commissioner of Customs represents a plausible view based on the factual matrix of the case and the statutory provisions. For example, an order passed by a Commissioner dropping the duty demand and penal proceedings against an assessee relying upon the judgment of a High Court, cannot be said to be suffering from illegality or impropriety and cannot be challenged by the Revenue before the Tribunal by filing application under section 129 D(4) read with Section 129D(1) just because the High Courts order relied upon by the Commissioner has been challenged before the Apex Court and the Departments appeal is pending, unless the judgment of the High Court has been reversed by the Apex Court. Such order of the Commissioner can be challenged by the Assessee or a person aggrieved before the Tribunal, but the same cannot be challenged by the Revenue before the Tribunal under section 129D(4), as the same is not the order suffering from illegality or impropriety. Thus, though section 129 A(2) and Section 129 D(4) read with section 129 D(1) do not use the word revision application and the application filed under section 129 D(4) is to be treated as an appeal before the Tribunal, the appeals filed under section 129 A(2) or section 129 D(4) before the Tribunal have to be treated as revision, as from the language of these sections, it is clear that the scope of the appeals filed by Revenue is confined only to the points on which according to the Reviewing authority, the impugned order is not legal or proper and this is precisely the scope of a revision proceeding.
5.1.2 The power under section 129D(1) of suo moto calling for and examining the records of a proceeding in which a Commissioner has passed an order as an adjudicating authority for satisfying itself about its legality or propriety and if warranted, taking corrective action by directing the commissioner to file an application under section 129D(4) to the Tribunal for correct determination of the points arising out of the Commissioners order, as mentioned in the order issued under section 129D(1), exercised by the Committee of Chief Commissioner, or as the case may be, by the Board in case of difference of opinion between the Chief Commissioner constituting the Committee, is the power of Superintendence conferred on the Committee/Board over the quasi judicial function of the Commissioner, even though the final decision on the points mentioned in the order issued under section 129D(1) on which the Commissioners decision is considered to the illegal or improper, is taken by the Tribunal. The Apex Court in the case of CCE Vs. M.M. Rubber reported in 1991(55) ELT-289 (SC) in para 18 of the judgment has held that the power exercisable under section 35E of the Central Excise Act, 1944 (which is in pari materia with the provisions of Section 129D(1) on Custom Act, 1962) is a power of superintendence conferred on a superior authority to ensure that subordinate officers exercise their power under the Act correctly or properly and accordingly the Apex Court has held that when a limitation period is prescribed in Section 35E(3) for exercise of this power, the same is to be exercised by the designated officer within that limitation period. However, main observation of the Apex Court in this judgment is that the power under section 35E(1) of the Central Excise Act 1944 (which in pari materia with the provisions of Section 129D(1) of the Customs Act, 1962) is a power of superintendence conferred on superior authority to ensure that subordinate officers exercise their power under the act correctly or properly. Since exercise of power under section 129D(1) is confined only to the cases where the Commissioners order suffers from patent and material illegality or impropriety i.e. perversity to be corrected in the interests of justice, and this power is not to be exercised just because the Committee/Board has a different view in the matter and for this reason is aggrieved by the order passed by the Commissioner, the scope of appeal filed under section 129D(4) before the Tribunal, will be confined only to the points of patent and material illegality of impropriety in the commissioners order.
5.1.3 The power exercised by Committee of Chief Commissioner under section 129D(1) is similar to the power of superintendence exercised by a High Court under Article 227 of the Constitution over all the Courts and Tribunals within its jurisdiction. The Apex Court in series of judgment in the cases of Nibaran Vs Mahindra reported in AIR- (1963)-SC- 1895; Chandravarka Vs Ashalata reported in AIR-(1986)-SC-117, and Ouseph Mathai Vs. M.Abdula Khadir reported in AIR-(2002)-SC-110 has held that the power of interference under Article 227(1) of the constitution which is exercised by a High Court over all courts and Tribunals within its jurisdiction in exercise of its power of superintendence, cannot be resorted to merely because the High Court takes a different view on the merits and generally it is limited to the want of jurisdiction, errors of law, perverse findings, gross violation of natural justice etc. The Apex Court in the case of Mani Vs. Phiroz, reported in AIR-(1991) SC-1494 has held that High Court should not interfere with a findings of fact within jurisdiction inferior of Tribunal, except where the decision of the Tribunal is perverse or not based on any material whatsoever or the conclusion arrived at is such that no reasonable Tribunal could possibly have come to, or it has resulted in manifest injustice. In the case of Khimji Vodhu Vs. Premier High School, reported in AIR-(2000) - SC-3495, the Apex Court has held that the Jurisdiction under the powers, under Article 227 must be sparingly exercised and should be exercised to correct the errors of jurisdiction and the like, but not to upset pure findings of fact which falls in the domain of appellate court only. The ratio of the above judgments of the Apex Court is applicable ;to the exercise of power under section 129D(1) by the Chief Commissioner/Board.
5.1.4 Since the scrutiny of an order passed by a Commissioner of Customs by the Committee of Chief Commissioners under section 129 D(1) for ascertaining as to whether the order is legal and proper and directing the Commissioner to apply to the Tribunal for the correct determination in respect of points of illegality and impropriety, if any is power of superintendence, which has to be exercised only when the order passed by the Commissioner suffers from patent and material illegality or impropriety, by directing the Commissioner to file an application to the Tribunal under section 129 D(4) for correct determination of the points in respect of which, according to the Committee, the Commissioners decision is not legal and proper, and such application is treated as an appeal filed by the Commissioner before the Tribunal, the appeal filed under section 129D(4) read with section 129 D(1) is basically a revision proceeding on the application of Revenue, whose scope is confined only to the points of material illegality or impropriety mentioned in the order passed by the Committee of Chief Commissioner under section 129 D(1). The illegality and impropriety, as mentioned above, is the order of the Commissioner being patently contrary to the Provisions of the Law or being in gross valuation of the principles of natural justice or having been passed outside the jurisdiction or by ignoring the points of fact or the points of Law placed on record by either side or the fine or penalty imposed being grossly disproportionate to the nature and gravity of the offence, or in other words, the order passed by the Commissioner suffers from perversity. Only in such a situation, the Tribunal can interfere with the Commissioners order on the point on which his decision is perverse and which have been pointed out by the Committee of Chief Commissioner in its order passed under section 129 D (1). The Revenue, by filing application under section 129D(4) read with section 129D(1) cannot seek re-adjudication of the matter by the Tribunal on any point on which it does not agree with the Commissioners decision unless Commissioners decision on that point suffers from material illegality or impropriety.
5.1.5 My learned brother in his order has appreciated the difference between an appeal proceeding and a revision proceedings. While appeal is a plea by the aggrieved party for a second judgment on the matter, is a continuation of the original proceeding and is a statutory right of the aggrieved party and in the appeal proceedings, the appellate authority can taken a relook at the decision of the adjudicating authority which has been appealed against, the scope of revision is correcting some material illegality or impropriety in the order passed by the lower adjudicating authority. Since the appeal, filed under section 129 D(4) read with section 129 D(1), as discussed above, is basically a revision proceeding (Commonly called review appeal) initiated on the instructions of Committee of Chief Commissioner/Board in respect of the points of illegality or impropriety in an order passed by the Commissioner of Customs as an adjudicating authority, the scope of such an appeal, filed by the Revenue would be confined only to the points of material illegality or impropriety as pointed out by the reviewing authority Committee of Chief Commissioners/Board in the order passed under section 129D(1) and in these proceedings, the Tribunal cannot re-adjudicate the entire matter, but has to confined itself only to the points of material illegality or impropriety.
5.2 In the present case, on going through the order under section 129 D (1) passed by the Committee of Chief Commissioners, I find that the order does not mention at all any points on which the Commissioners Order is not legal or proper. The order passed under section 129D(4) simply expresses another view based on the same set of facts and on that basis authorizes the commissioner to file appeal before the CESTAT. In this regard the last two paragraphs of the order passed by the Committee of Chief Commissioners are reproduced below:-
In view of the overall facts and perspective, order merits review on the basis of evidence on record for confiscation of the goods under section 111(f) of the Act and for imposition of penalty on all the above mentioned four individuals, 15 Custom Officers and Kyrgyzstan Airlines under section 112 of the Act.
The Committee hereby authorizes to Sh. M.D. Singh Commissioner of Customs, Import & General, new Customs House, New Delhi to file appeal before the CESTAT.
As mentioned above, nowhere in the order passed by the Committee under section 129 D (1) directing the Commissioner to file appeal to Tribunal for imposition of penalty on certain noticees including the 14 Custom Officers mentioned above (Respondents) who had been exonerated by the Commissioner, there is any findings by the Committee that the adjudicating commissioners order with regard to these 14 Customs Officers is not legal and proper and why. The order under the heading statement of Facts gives the facts of the case and the details of the Commissioners order and under the heading grounds of application/appeal simply discusses evidence on record against each of the 14 Customs Officers along with its view that the evidence on record proves the involvement of the officers in smuggling and is sufficient for imposition of penalty on him under section 112 of the Customs Act, 1962. Neither the defence of the officer is discussed nor there is any discussion as to why the Commissioners order in respect of these customs officers (Respondents in these appeals) is not legal and proper. The order passed by the Committee under section 129 D(1) has been prepared like an appeal memorandum simply giving the grounds of appeal which contain the Committees view based on the overall facts and perspective with regard to imposition of penalty on the 14 Custom Officers (Respondents) under section 112 of the Customs Act, 1962 and authorizes the commissioner to file appeal to the Tribunal. The order passed by the Committee under section 129 D(1) is, therefore, an invalid order and on this ground itself the appeals filed by the Revenue have to be dismissed as invalid appeals, as the appeals filed by the Revenue under section 129D(4) read with section 129D(1) are not the appeals for correct determination of the points arising out of the Commissioners Order on which the Commissioners decision, according to the Committee, is not legal and proper, but are the appeals for relook at the entire case against the 14 customs officers (Respondents) who had been exonerated by the adjudicating authority.
6. Even if these appeals filed by the Revenue are treated as valid, as discussed above, their scope is confined only to the points in respect of which the Commissioners decision, according to the opinion of the Committee of Chief Commissioners, is illegal or improper, or in other words, is perverse. In these appeals the Commissioners findings on the points of fact and the Law which represent a plausible view, cannot be overturned and only the findings which are perverse i.e. patently contrary to the Provisions of the Law or are improper can be interfered with. In my view, these appeals have to be decided on the basis of this criteria only and in these proceedings the commissioners findings with regard to the respondent cannot be reversed if the same on the basis of evidence on regard and legal position, represent a plausible view and as much, do not suffer from patent perversity.
7. Coming to the evidence on record against individual officers, relied upon by the Department in support of its allegation of abetment of smuggling and on the basis of which, according, to the Committee of Chief Commissioners, there is a case for imposition of penalty on them under section 112 of Customs Act, 1962, in respect of seven officers namely Sh. V.S. Teotia - Preventive Officer (accused for abetment of smuggling on 27.02.2000, 17.04.2000, 15.05.2000, 10.07.2000), Sh. Praveen Teotia - Preventive Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. J.A. Khan (Preventive/ Baggage Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. Vinod Kumar Kain Preventive Officer (accused for abetment of smuggling on 15.05.2000, 24.07.2000 and 01.08.2000), Sh. R.K. Dacolia - Protocol Officer (accused for abetment of smuggling on 15.05.2000 and 10.07.2000), Sh. A.K. VarshneyProtocol Officer (accused for abetment of smuggling on 15.05.2000 and 10.07.2000) and Sh. D. S. Nandal Superintendent (accused for abetment of smuggling on 15.05.2000, 10.07.2000), the evidence relied upon by the Department is the statement of Sh. R.N. Zutshi (Preventive Officer) stating that these officers used to be in touch with Sh. Mamoor Khan negotiate with him for the payment to Customs Officers for facilitating the smuggling of Chinese Silk by Uzbek lady passengers. In respect of Sh. Praveen Teotia; Sh. J.A. Khan, Sh. Vinod Kumar Kain; Sh. R. k. Dacolia and sh. D.S. Nandal other than this statement of Sh. R.N. Jutshi, there is no other evidence except that they were posted in the same shift as Sh. R.N. Zutshi and on this basis the Department has alleged these Customs Officers along with Sh. R.N. Zutshi have facilitated the smuggling of Chinese Silk by the Uzbek lady passengers on the dates, as mentioned above. In case of Sh. V.S. Teotia and Sh. A.K. Varshney, there is evidence of record of one telephone call of about two minutes duration on 09.05.2000 from the landline phone installed at their common residential premises to the mobile no. 9811135921 of Sh. Mamoor Khan. There is neither allegation nor any evidence that these officers had checked the baggage of the lady passengers on the dates mentioned above and had permitted the clearance of their baggage without payment of duty. These officers have not been named either by the Uzbek lady passengers mentioned above or by Afghan National namely:- Mamoor Khan, Dil agha etc. who were receiving the Chinese Silk brought by the Uzbek lady passengers after its clearance without payment of duty. Sh. R.N. Zutshi who in his statement has implicated these seven officers, has subsequently retracted his statement. The allegation made by Sh. R.N. Zutshi against all these seven officers is uniform-negotiating with Sh. Mamoor Khan about the amount to be paid to Customs for facilitating the clearance of the Chinese Silk brought by the Uzbek lady passengers. This allegation of Sh. R.N. Zutshi remain an un-substantiated allegation when no inquiry in this regard has been made with Sh. Mamoor Khan and there is no other evidence. In case of V.S. Teotia and Sh. A. K. Varshney, while they have been accused of abetment of smuggling on 10.07.2000 also, their posting at Delhi Airport was till 05.07.2000 and there is no explanation as to how they could have abetted smuggling on 10.07.2000. Moreover, the statement of Sh. R.N. Zutshi implicating these seven respondents implicating these seven respondents is an exculpatory statement which cannot be acted upon without corroboration by some other independent evidence. In case of Sh. V.S. Teotia and Sh. A.K. Varshney, there is an additional evidence relied upon by the Department that on 09.05.2000, there was a call from the landline telephone installed at their temporary residence to the mobile no. 981113591 of Sh. Mamoor Khan for 2 minutes and 4 seconds. When the landline telephone was installed at the temporary residence of these officers which they were using on sharing basis, and it is not known as to who made this call on 09.05.2000 to Sh. Mamoor Khan, it cannot be presumed that this call was made by both of these officers when no inquiry has been conducted as to whether this residence was being shared by other persons also. Moreover merely from the record of this call, it cannot be inferred that the conversation was for facilitating smuggling activities of the Uzbek lady passenger. In fact in view of these circumstances only, the Commissioner had decided not to imposed penalty on these officers and in my view the Commissioners decision in this regard cannot be said to be illegal or improper.
8. Sh. Neeraj Kumar - Preventive Officer (accused of abetting smuggling on 22.05.2000 and 01.07.2000) was exonerated by Commissioner on the grounds that:-
(a) He has not been named by the Sh. R.N. Zutshi or any other person as the person involved in the smuggling by Uzbek lady passenger;
(b) Though according to the Department there were 25 telephonic contact between him through his mobile number 9811009428, with Sh. Mamoor Khan and one telephonic contact with Ms Olga, this mobile number is not in the name of Sh. Neeraj Kumar but is in the name of Alok Singh and no enquiry has been conducted with Sh. Alok Singh ; and
(c) When on 22.05.2000 and 01.07.2000, the officer was on duty at the Airport, at that time, as per the area code mentioned in the call records, his phone was not located at the International Airport but was located elsewhere i.e. at Hyatt, Dayanand Colony, CR Park, Shahbad and Palam Airport.
The above facts are not disputed by the Department. Just because between the mobile no. 9811009428, which was in the name of Alok Singh, a relative of respondent Sh. Neeraj Kumar and the mobile number of Sh. Mamoor Khan and Ms Olga Kozireva, there were some telephonic contacts, it cannot be presumed that these telephonic contacts had been made between respondent Sh. Neeraj Kumar and Mamoor Khan/Ms Olga Kozireva, as absolutely no enquiry has been made with Sh. Alok Singh in whose name the sim card of this mobile number had been issued by the telephone company. Moreover, as per the call records, on 22.05.2000 and 01.07.2000 when the telephonic contacts had been made, at the time of calls while the officer was on duty at the International Airport, the telephone as per the call records was located in areas far away from the International Airport for which there is no explanation. When respondent was admittedly at the Airport, he could not have been used this mobile phone from locations far away from the Airport. In view of these facts and circumstances only the Commissioner has decided not to impose any penalty on this office and this order of the Commissioner cannot be said to be suffering from gross illegality or impropriety.
9. As regards Sh. Kamal Bajaj (accused abetment of smuggling on 01.02.2000), he has not been named by Sh. R.N. Zutshi. The evidence relied upon by the Department against him, is:-
(a) Statement of Sh. Ajay Dhiman, Supervisor in Kyrgyzstan Airlines, stating that he used to be in touch with Sh. Mamoor Khan and he had heard Sh. Mamoor Khan saying that the shift of Sh. Kamal Bajaj is very good; and
(b) 56 telephonic contacts of the respondent with Mamoor Khan and one telephonic contact with the passenger Ms Shahlo.
9.1 The defence of officer is that he during the period of dispute, he was trying to develop Sh. Mamoor Khan as an informer and for this reason only he was making frequent calls to him. While the Commissioner has doubted this explanation of Sh. Kamal Bajaj, he has decided not to impose any penalty on him on the ground that while the telephonic contacts of this officer with Sh. Mamoor Khan and the lady passenger and the statement of Sh. Ajay Dhiman of Kyrgyzstan Airlines give rise to a suspicion about this officer, the same do not establish preponderance of probability in support of the allegation of abetment of smuggling against him.
9.2 As regards the statement of Ajay Dhiman stating that he had heard Mamoor Khan saying that shift of Sh. Kamal Bajaj is very good, the same is hearsay evidence, as no enquiry has been conducted with Sh. Mamoor Khan. Therefore the statement of Sh. Ajay Dhiman implicating Sh. Kamal Bajaj being hearsay evidence is not of any evidentiary value, more so, when no inquiry in this regard had been made with Sh. Mamoor Khan and he is not available for examination as witness. Once the statement of Sh. Dhiman is ignored, what remains is the call records, showing telephonic contacts between him and Sh. Mamoor Khan and Ms Shahlo. But neither Sh. Mamoor Khan nor Ms Shahlo have been questioned with regard to the purpose of these telephonic calls. There is no transcription of these calls and as such the contents of these telephonic contacts is not known. Therefore merely on the basis of the record of telephonic contacts, no adverse conclusion can be drawn against this respondent, and it cannot be held that the respondents had abetted the smuggling activity of the Uzbek lady passengers and Mamoor Khan as merely from the record of these telephonic contacts whether originating from Sh. Mamoor Khan/ Uzbek lady passengers or from the Respondent, it cannot be presumed that these telephonic contacts were for facilitating the smuggling activities unless the record of telephone contacts is corroborated by some other oral evidence or circumstantial evidence which is not there in this case. In view of this, the Commissioners order exonerating Sh. Kamal Bajaj cannot be said to be a perverse order meriting interference.
10. As regards Sh. Yashvir Singh- Superintendent (accused of abetment of smuggling on 24.07.2000), Sh. S.D. Rajpal, Inspector (accused of abetment of smuggling on 04.08.2000), Sh. S.A. Lamb Preventive Officer(accused of abetment of smuggling on 18.08.2000), and Sh. V.K. Bhardwaj Superintendent (accused of abetment of smuggling on 18.08.2000), the only evidence relied upon by the Department against these officers is telephonic contacts between their mobile numbers and the Mamoor Khan/Dil Agha /Olga Kozireva. These officers have not been named by Sh. R.N. Zutshi or by any other person as involved in abetment of smuggling. There is neither allegation, nor evidence to show that these officers had personally examined the baggage of the Uzbek lady passengers and had facilitated its clearance without payment of duty. The Telephonic contacts between these officers and Mamoor Khan/Dil Agha/Olga Kozireva are only a few calls from which it cannot be presumed that the telephonic contacts were for facilitating the illicit import of Chinese Silk by the Uzbek lady passengers when the record of telephonic contacts is not corroborated by any other oral or circumstantial evidence indicating the involvement of these respondents in the smuggling activities. For these reasons only the Commissioner in the impugned order has exonerated of these officers, holding that merely on the basis of telephonic contacts it cannot be concluded that these officers were involved in facilitating illicit import of Chinese Silk by the Uzbek lady passengers. In view of this I hold that the Commissioners Order exonerating these officers cannot said to be illegal or improper or in other words perverse, so as to warrant interference by the Tribunal.
11. As regard Sh. Kamal Suman, Inspector/Protocol Officer alleged to have abetted smuggling on 24.07.2000 and 01.08.2000, the evidence relied upon by the Department in support of this allegation is statement of Sh. R.N. Zutshi alleging that he used to negotiate with Sh. Mamoor Khan and Dil Agha for payment to the customs for facilitating smuggling and also one telephonic contact each from his mobile number with Mamoor Khan and Ms Olgha Kozireva. The Commissioner observing that this evidence is not sufficient to establish preponderance probability in support of the allegation against him, has decided not to impose penalty on him.
11.1 As regards the statement of Sh. R.N. Zutshi, as discussed above, the same had been retracted by him and in absence of any inquiry with Sh. Mamoor Khan, the same cannot be acted upon, when neither Ms Olga Kozireva has named this officers in her statement nor Sh. Dil Agha in his two statements has named this officer. Moreover, Honble Delhi High Court also in the judgment remanding this matter to the Tribunal has observed that merely on the basis of statement of Sh. R.N. Zutshi, penalty cannot be imposed on the respondents. As regards one telephonic contact each between him and Mamoor Khan and Ms Olga, merely on the basis of the call record it cannot be said that he was in touch with Sh. Mamoor Khan and Ms Olga for facilitating their smuggling activity when no inquiry in this regard has been conducted with Sh. Mamoor Khan and Ms Olga. In view of these circumstances I hold that the Commissioners decision exonerating Sh. Kamal Suman cannot be said to be illegal or improper.
12. Thus, even on the basis of evidence on record, there is no case for imposition of penalty on the Respondents under section 112 of the Customs Act, 1962 and therefore, the commissioners order dropping the penal proceedings against them, cannot be said to be suffering from any material illegality or impropriety.
13. In view of the above discussion, the appeals filed by the Revenue are dismissed.
(RAKESH KUMAR) Member (Technical) Since there is difference of opinion between Member(Judicial) and Member (Technical) in terms of the Provisions of Section 129C(5) of the Customs Act, 1962, the Registry is directed to place this matter before Honble President for either hearing the points of difference as mentioned below, himself or constituting a bench for his purpose:-
(1) Whether an application filed by the Revenue under section 129 D(4) read with section 129 D(1), which is treated as, if it were an appeal against the Commissioners Order, is in the nature of revision application whose scope is confined only to decision on the points of material illegality or impropriety, as pointed out in the order issued under section 129D(1) and mentioned in the application filed under section 129D(4);
Or Whether the application filed by the Revenue under section 129D(4) read with section 129D(1), which is treated as if it were an appeal against the Commissioners Order, is in the nature of an appeal filed by any person aggrieved under section 129A(1) and the Tribunal, which deciding this appeal can go into all the points relating to various aspects of the case which have been raised in the appeal without confining itself only to the points of material illegality or impropriety.
(2) Whether an application filed by a Commissioner under section 129D(4) in pursuance of an order passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the Commissioners order when the order issued under section 129D(1) does not mention any points of material illegality or impropriety whatsoever and simply projects its view based on the overall facts and perspective and seeks filing of appeal on that basis.
(3) Whether on the basis of the evidence on record against each Respondent, the Commissioners findings exonerating each of them can be said to be suffering from illegality or impropriety and accordingly the Revenues appeal are to be allowed;
Or Whether on the basis of the evidence on record against each Respondent, the Commissioners findings exonerating each of them are legal and proper and accordingly the Revenues appeal are to be rejected.
(Rakesh Kumar) (D.N. Panda)
Member (Technical) Member (Judicial)
S.Kaur
The following Difference of Opinion has been referred to me:-
Whether an application filed by the Revenue under Section 129 D(4) read with Section 129 D(1) of the Customs Act, 1962, shall be treated as, if it were an appeal against the Commissioners Order, or a revision application confining its scope only to decision on the points of material illegality or impropriety of the order appealed.
Or Whether the application filed by the Revenue under Section 129D(4) read with section 129D(1) of the Customs Act, 1962 shall be treated as if it were an appeal against the order of the Commissioner, under Section 129A(1) of Customs Act, 1962 and the Tribunal, while deciding such appeal can only into all the points relating to various aspects of the case raised in the appeal of Revenue without confining its jurisdiction only to examine whether the illegality or impropriety of the order appealed was examined by the committee?
2. Whether an application filed by a Commissioner under section 129D(4) in pursuance of an order passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the order of the Commissioner.
(3) Whether on the basis of the evidence on record against each Respondent, the Commissioners findings exonerating each of them can be said to be suffering from illegality or impropriety and accordingly the Revenues appeal are to be allowed;
Or Whether on the basis of the evidence on record against each Respondent, the Commissioners findings exonerating each of them are legal and proper and accordingly the Revenues appeals are to be rejected.
2. Ld. Departmental Representative for Revenue argued the case in detail and then submitted written submissions on 09.11.2015 contending as under:-
(i) Regarding point Nos.1 and 2 of the difference of opinion, the judgment of Delhi High Court in the case of CST Vs. L.R. Sharma [2014 (35) STR 3(Del.)] has settled the issue.
(ii) Ld. Member(Judicial) has found that each respondent was a member of the abetting team of customs officers, which indulged in smuggling, fraud and connivance and collusion with foreign nationals who arrived repeatedly at short intervals.
(iii) The requirement for imposition of penalty is preponderance of probability, which as ld. Member(Judicial) found, existed in case of the respondent officers.
(iv) Para 215 of the Show Cause Notice is not the only Para containing charges against the respondents and that the entire Show Cause Notice has to be taken into account to decide the matter of imposition of penalty on the respondents.
(v) The Commissioner failed to examine and discuss as to why and how the respondents provided no answers to various questions, why necessary pre-requisites of accountal for adjudication of such large quantities of Chinese silk such as (i) checking of actual quantity of imported goods (ii) checking of record of previous visits by the same passenger, (iii) previous imposition of fine and penalty earlier (iv) checking of passengers passports, (v) checking of baggage tags of passengers and cross checking with the manifest filed by the airlines and (vi) checking of flight boarding passes of passengers who came with the offending goods, were not fulfilled.
(vi) The respondents did not act in a prudent manner in the given circumstances.
(vii) Commissioner had not taken into account the totality of the circumstances and several vital points linking each of the 14 respondents were ignored.
(viii) Holistic appreciation of events and charges has been done by the Hon'ble Delhi High Court in the case of Sudhir Sharma Vs. CC, New Delhi [2015 (319) ELT 450 (Del.)] and also its judgment dated 20.03.2015 in the case of Mahindra Jain & Others Traders Vs. CC (I & G), Delhi in Customs Appeal Nos.CUAA, 24, 25, 26, 27, 28, 29 and 30/2014.
(ix) The respondents deliberately let down their guard and vigil to enable the offender passengers to come repeatedly with the same goods in commercial quantity on same flights and airlines that shows a clearly thought out pattern for commission of the offence of smuggling. This aspect was clearly ignored by the Commissioner.
(x) Respondents were consciously involved as shown not only by the telephonic contacts with the persons involved in the smuggling racket but also by the surrounding set of circumstances.
(xi) The original statement of Shri R.N. Zutshi was credible evidence to be used against all the fourteen respondents. An afterthought retraction cannot be a valid defence and that the credibility of Shri RN Zutshi has been upheld by the Delhi High Court in its judgment in the cases of Sudhir Sharma Vs. CC, New Delhi and Mahindra Jain & Others Traders Vs. CC (I & G), Delhi. His statement brought out particular parts played by each of the 14 respondents in the chain of activities leading to the smuggling.
(xii) The Commissioner has recorded at some places that some of the respondents have not given satisfactory explanation regarding the telephonic contacts and still acquitted them.
(xiii) Revenue is not required to prove its case with mathematical precision to a demonstrable degree as it only needs to establish preponderance of probability and cited the judgment of Hon'ble Supreme Court in the case of CIT Vs. Durga Prasad More [82 ITR 540, 545-47 (SC)], wherein the Supreme held that science has not yet invented any instrument to test the reliability of the evidence placed before a court or a tribunal. Therefore, the courts and tribunals have to judge the evidence before them by applying the test of human probabilities. The test of preponderance of probability was not applied by the Commissioner.
(xiv) Ld. Departmental Representative referred to various dictionary meanings of collusion, connivance and conspiracy and cited the judgments of the Hon'ble Supreme Court in the cases of Subhas Chandra Vs. Ganga Prasad [AIR 1967 SC (878)] and Shri Ram Vs. State of U.P. [1975 (3) SCC 485 & 498] with regard to the scope these words.
(xv) When fraud surfaces that unravels all; Revenue cited judgment of Hon'ble Supreme Court in the case of Union of India Vs. Jain Shudh Vanaspati Ltd. [1996 (86) ELT 460 (SC)] in this regard.
(xvi) Also, ld. Departmental Representative states that fraud nullifies everything. He cited the judgment of Hon'ble Supreme Court in the case of CC Vs. Candid Enterprises [2001 (130) ELT 404 (SC)].
(xvii) Revenue cited the judgments in the cases of SP Chengalavaraya Naidu Vs. Jagannath [AIR 1994 SC (853)] and Ram Preeti Yadav Vs. UP Board of High School and Intermediate Education [AIR 2003 SC 4268] to advance the proposition that no court will allow a person to keep an advantage which has been obtained by fraud.
(xviii) Ld. Departmental Representative dwelled upon the term fraud, collusion which vitiate even the most solemn proceedings in any civilized system of jurisprudence. He cited the judgment in the case of Derry & Ors. Vs. Peek [1886-90 (ALL) ER 1)] wherein it was held that fraud is proved when it is shown that a false representation has been made (a) knowingly or (b) without belief in its truth or (c) recklessly, carelessly whether it be true or false.
(xix) The respondents acted without diligence or without caution and vigilance and admitted that large quantities of foreign silk textile were cleared as accompanied baggage of passengers, predominantly females from central Asian countries who had a language problem and also admitted that it happened on multiple occasions, as though such an activity was a normally permitted activity under customs law.
(xx) Ld. Departmental Representative cited several judgments to support the proposition regarding the test of preponderance probabilities and how it has been established.
(xxi) Ld. Departmental Representative stated that viewed in the context of his arguments/contentions, the evidence against each of the respondents is sufficient to penalize them.
3. Ld. Advocates for the respondents individually submitted their defence essentially stating that (i) the retracted statements of Shri R.N. Zutshi cannot be relied upon to penalize them when there is no corroboratory evidence (ii) in some cases where there are telephone contacts with the persons involved in smuggling, the same have been explained and there is no transcript or details of conversation during such telephonic contacts and therefore even on the basis of preponderance probability, no charge of abetment can be sustained. Individual defences will be further discussed while taking up analysis of evidence against individual respondents during the discussion below.
4. I have considered the contentions of both sides. As regards point (1) and (2) of the difference of opinion, the provisions of Sections 129A(1) and 129D(1) and (4) are reproduced below:-
129A. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order
(a) a decision or order passed by the [Commissioner of Customs] as an adjudicating authority;
(b) an order passed by the [Commissioner (Appeals)] under section 128A;
(c) an order passed by the Board or the Appellate [Commissioner of Customs] under section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the [Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediately before that day: [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,
(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder: Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where
(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or
(ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(iii) the amount of fine or penalty determined by such order, does not exceed [Fifty thousand rupees.] (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
129D(1) Powers of Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs] or [Principal Commissioner of Customs or Commissioner of Customs] to pass certain orders. (1) The [Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs]] may, of its own motion, call for and examine the record of any proceeding in which a [Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such [Commissioner] [or any other Commissioner] to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the [Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs]] in its order.
[Provided that where the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the [Principal Commissioner of Customs or Commissioner of Customs], it shall state the point or points on which it differs and make a reference to the Board which, after considering the facts of the decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs], if is of the opinion that the decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs] is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order.005D (2)?The [Principal Commissioner of Customs or Commissioner of Customs] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct [such authority or any officer of Customs subordinate to him] to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Principal Commissioner of Customs or Commissioner of Customs] in his order.
[(3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.] [Provided that the Board may, on sufficient cause being shown, extend the said period by another thirty days.] (4)?Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the [Principal Commissioner of Customs or Commissioner of Customs], makes an application to the Appellate Tribunal or the [Commissioner (Appeals)] within a period of [one month] from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the [Commissioner (Appeals)], as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so far as may be, apply to such application.
5. From the perusal of the aforesaid sections, it is evident that under section 129D, the Commissioner is directed by the Committee of Chief Commissioners to apply to the Appellate Tribunal for the determination of such points arising out of the decision or the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order and the Appellate Tribunal is to hear such application as if it was an appeal against the decision or order of the adjudicating authority. Further, by virtue of Section 129A(4), which comes into play by virtue of Section 129D(4), memorandum of cross-objections filed by the respondent is to be disposed of by the Appellate Tribunal as if it were an appeal. The respondent can file cross-objections against any part of the order appealed against. The Appellate Tribunal can not only go into points arising out of the decision or order as may be specified by the Committee of Chief Commissioners, but also go into the points raised by the respondent in its cross-objections. In other words, the Tribunal is not obligated to confine its scope only to the decision on the points arising out of the order or decision as may be specified by the Committee of Chief Commissioners, but also cover the points raised in the memorandum of cross-objections but in the absence of the cross-objections, the Tribunal is to confine itself only for the determination of such points arising out of the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order.
6. As regards point No.3 of the difference of opinion, at the very outset, it is pertinent to state that the Tribunal while passing the order giving rise to the difference of opinion with regard to penalties on the respondents, acted in pursuance of the observations of the Honble Delhi High Court which in its order dated 23.05.2011 observed as under:-
From what we have discussed above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to the 14 customs officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua these 14 customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would endeavour to dispose of the same within six months. Parties shall appear before the Tribunal on June, 13, 2011. [Emphasis supplied] The background, facts and circumstances of the case have been narrated in the findings of the ld. Members of the Tribunal leading to the difference of opinion and therefore are not being repeated.
7. I have perused the Show Cause Notice. It is seen that in Para 215 of Show Cause Notice the flight numbers and dates are mentioned in respect of the respondents who are alleged to have abetted smuggling of Chinese silk by passengers who came by those flights as is evident from the wording of the said Para which is reproduced below in full for convenience:-
215. From the facts revealed in the investigation as mentioned hereinabove, the details of the relevant date/flight, the quantum and value of silk textiles smuggled, the resultant fraudulent evasion of customs duty, the persons(s) who, jointly or severally, evaded the customs duty and prohibitions, the persons who abetted evasion of the customs duty and prohibitions and person(s) who were concerned in dealing with the smuggled goods on the date/flight are given in table 14 below:-
Date & Flight Number Silk Textiles not decl. and not assessed. In meters Value of silk Textiles not decl. and not assessed In Rs.
Customs duty Evaded In Rs.
Person who, jointly or severally evaded duty on the illicit import Persons whoabetted Persons concerned with dealing with the goods (TRADERS). A B C D E F G 17-12-98 KGA 2003 11338 7,71,007 6,19,659 Olga K, Nazira I and Shakista K Not know Not known 17-9-99 PK814 4546 3,09,125 1,89,185 Olga K Not know Not known 1-2-2000 KGA2001 22272 15,14,474- 9,26,858 Shakista K KamalBajaj, MamoorKhan,Sanak NitishKedia,AnupSingh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 27-2-00 HY 151 26159 17,78,785- 10,88,616 Olga K and Shakista K Mamoor,Klldll,TRKReddy,VK.Khurana, Ajay yadav, V.S Teotia, ParveenTeotiaJ.A. Khan, NitishKedia,AnupSingh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 10-4-00 K2 545 20696 14,07,355- 8,61,301 Shalo A MamoorKhan,Sanak, SudhirSharma, Yashpal, Olga K,notpassenger but atairport. Whenflight arrived.
NitishKedia, AnupSingh,KhemSingh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 17-4-00 HY 421 2129 1,44,752 88,588 Olga K MamoorKhan,TRKReddy, VK Khurana, Ajay YadavVS Teotia,ParveenTeotia, JAKhan. NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,AnudeepSingh 23-4-2000 HY 433 3046 2472 3565 2,07,138 1,68,100 2,42,386 1,26,768 1,02,877 1,48,340 Olga K, Nazira I and Shalo A MamoorKhan,Sanak NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 8-5-2000 K2 545 6062 6062 4,12,243 4,12,243 2,52,293 2,52,292 Olga K and Isamu KM Mamoor Khan, SanakShahlo, Nazira I NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,SanjivJain,Mahender Jain,Anudeep Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan,Sanak,Nazira I,RNZutshi,Yashpal, VinodKumar(Kain), VSTeotia, RKDocoliya,AKVarshney,DS Nandal NitishKedia,AnupSingh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 22-5-00 K2 545 18296 12,44,155 7,61,423 Olga K Nazira I and Shahlo A MamoorKhan,Sanak, TRKReddy,SudhlrSharma,NeerajKumar NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko MamoorKhan,Sanak,Nazira,Isamu*KMMitrushov NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 1-7-00 HY 429 8220 5,58,946 3,42,075 Olga K MamoorKhan,Sanak, SudhirSharma,Nazira, NeerajKumar. NitishKedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh >-7-00 9Y 219 14448 9,82,491 6,01,285 Olga K Mamoor Khan, Sanak, Yashpal NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 10-7-00 K2 545 21496 14,61,755- 8,94,594 Olga K MamoorKhan,Sanak,VinodKumar,RNZutshi, VS Teotia,RKDacoliya, AKVarshney, DSNandal NitishKedia,Anup Singh,Khem Singh, ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 17-7-2000 K-2 545 32654 22,20,450- 13,58,916 Nazira I MamoorKhan,Sanak,TRKReddyKozireva##not paxbut atairoport When flight arrived.
NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 24-7-2000 K-2 545 25630 17,42,840- 10,66,618 Merkulova L Dil Agha, MamoorKhan,Sanak, Sadullah, ZanjirKhan, TRKReddy,RNZutshi, Anil Madan Kozireva *Nazira*,*notpaxbut in aportwith flight Yashvir Singh, VinodKumar(Kain),KanwalSuman, NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 27-7-2000 PK 270 2467 5991 1,67,742 4,07,374 1,02,658 2,49,313 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, V K Khurana NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 31-7-2000 K-2 545 26194 17,81,219- 10,90,106 Olga K Dil Agha,MamoorKhan,Sadullah,ZanjirKhan, VK Khurana NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain.
Anudeep Singh 1-8-2000 PK 270 5419 5638 3,68,519 3,83,411 2,25,534 2,34,648 Olga K Nazira I Dil Agha,MamoorKhan,Sadullah,ZanjirKhan, RNZutshi VKKhurana* Anil Madan *putupadjudicationpapers VinodKumar(Kain), KanwalSuman, NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain, Anudeep Singh 4-8-2000 PK 270 3934 6040 3,35,485 4,10,744 2,05,317- 2,51,376 Olga K Nazira I Dil Agha,MamoorKhan,Sadullah,ZanjirKhan, VKKhurana,SDRajpal* NitishKedia, Anup Singh, Khem Singh, Arun Do-kania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh *comes for night duty and has contacts with OK still at aport and Shri Dinesh Agarwal Director.
11/12-8-2000 22668 15,41,424 9,43,351 Olga K Nazira I Dil Agha,MamoorKhan,SanakSadullah,ZanjirKhan,PradeepRana NitishKedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 12,57,755 7,69,746 Merkulova Dil Agha,Olga K*NaziraI*, *notpassengersbutassessed.
Mamoor Khan, SanakSadullah, Zanjir Khan, Pradeep Rana NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,MahenderJain,Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 2,66,759 Nazira I DilAgha,MamoorKhan,Sadullah,ZanjirKhan,Olga K,Pradeep Rana, SA Lamb, VK Bhardwaj NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh 21-8-2000 K-2 545 31425 21,36,878 13,07,759 Merkulova L Dil Agha,MamoorKhan,SanakSadullah,ZanjirKhan,R.N.Zutshi, Olga K*,Nazira*,*notpassengerbut assessed. NitishKedia,Anup Singh,Khem Singh,ArunDokania,GopalDokania,Sanjiv Jain,Mahender Jain,Anudeep Singh Total 421245 2,86,44,640 1,75,78,322
8. Before taking up the cases of individual officers, it is also pertinent to state that evidence against the respondents is essentially the statements of third party and details of telephonic contacts (without transcript). It is, therefore, necessary to settle jurisprudence with regard to the efficacy of such evidence for the purpose of sustaining allegation of abetment of smuggling. There is a series of judgments, which have repeatedly held that statement of third persons in the absence of corroborative evidence cannot be relied upon for imposition of penalties. In the case of Mohtesham Mohd. Ismal Vs. Spl. Director, Enforcement Directorate [2007 (220) ELT 3 (SC)], it was inter alia held that confession of co-accused cannot be treated as substantive evidence. In the case of Mehul Roadways Vs. CCE, Bhavnagar [2009 (246) ELT 660 (Tri.-Ahmd)], CESTAT has held that the statement of co-accused cannot be made as a basis for imposition of penalty unless there is corroboratory material. In the case of Punam Chand Bhotra Vs. Collector of Customs [1993 (63) ELT 237 (Tri.-Cal)], CESTAT held that the statement of co-accused is not to be relied upon to implicate the appellant, especially when not corroborated by evidence. In the case of Jai Narain Verma Vs. Collector of Customs [1995 (76) ELT 421 (Tri.)], the Larger Bench of CESTAT held that the statement of co-accused cannot be relied upon to implicate the appellant unless there was corroborative evidence and imposition of penalty on the appellant would not be justified. As regards the telephonic contacts, in the case of Arvind Kumar Jain Vs. State of Rajasthan [2015 CRI.L.J. 2908], the Rajasthan High Court held that in the absence of contents of conversation, mere call records cannot bring complexities of accused in crime and unless phone calls are deciphered into conversation, it cannot be relied upon. Phone call between two persons does not create any suspicion. Thus observing, the Rajasthan High Court quashed even the framing of charges. In the case of Kalyanasundaram Vs. Inspector of Police [MANU/TN/1363/2014], the Madras High Court observed that talking to each other over phone cannot prove anything beyond that much.
9. In the case of Kamal Bajaj, Revenue relied upon the statement of Shri Ajay Dhiman, Supervisor in Kyrgyzstan Airlines stating that he had heard Shri Mamoor Khan saying that the shift of Shri Kamal Bajaj was very good and also on the fact that there were 56 telephonic contacts of Mr. Kamal Bajaj with Mamoor Khan and one telephonic contact with the passenger Ms. Shahlo. Shri Kamal Bajaj on the other hand has contended that he tried to develop Shri Mamoor Khan as an informer and therefore there were frequent calls with him. Even if the explanation/defence of Shri Kamal Bajaj is not entirely accepted, it is pertinent to mention that the statement of Shri Ajay Dhiman apart from being the statement of a third party, cannot be read to convey in any way that Shri Kamal Bajaj was abetting smuggling. Neither Shri Mamoor Khan nor Ms. Shahlo have been questioned with regard to the telephone calls. Shri Kamal Bajaj has not been named by anybody for abetting smuggling nor is there any transcript of telephonic calls to infer that the calls were made for the purpose of abetment of smuggling.
10. The principle of preponderance probability cannot be equated with a mere possibility even if strong. In this case nobody has named Shri Kamal Bajaj, there is no inculpatory statement of Shri Kamal Bajaj and there are no details (transcript) of the conversation of Shri Kamal Bajaj with Mr. Mamoor Khan or Ms. Shahlo available. In these circumstances, holding Shri Kamal Bajaj guilty of abetment of smuggling on the basis of preponderance probability will be tantamount to mis-appreciation of the principle of preponderance probability. In view of this and having regard to the settled jurisprudence with regard to the inadequacy of statement of third party and telephonic contacts for the purpose of sustaining charge of abetment as brought out in Para 8 above, I agree with ld. Member (Technical) that non-imposition of penalty on Shri Kamal Bajaj by Commissioner cannot be said to be so unreasonable, arbitrary or perverse as to warrant appellate intervention.
11. the case of Shri Praveen Teotia, Shri J.A. Khan, Shri Vinod Kumar Kain, Shri R.K. Dacolia, and Shri D.S. Nandal, the only evidence relied upon by Revenue is the statement of Shri R.N. Zutshi stating that these officers were in touch with Shri Mamoor Khan and engaged with him regarding negotiations of the payments to the customs officers for abetting smuggling of Chinese silk by foreign passengers.
In case Shri V.S. Teotia and Shri A.K. Varshney, apart from the statement of Shri R.N. Zutshi, there is evidence of record of one telephone call of 2 minutes duration on 09.05.2000 from the land line phone installed at the common residential premises shared by these respondents. There is neither any allegation nor any evidence that these officers had checked the baggage of the lady passengers on the dates mentioned above and had permitted the clearance of their baggage without payment of duty. Shri R.N. Zutshi who in his statement had implicated these seven respondents, subsequently retracted his statement. Thus, as has been analysed and brought out in Para 8 above, these are totally inadequate to sustain the charge of abetment even on the basis of preponderance of probability even with due regard to the observations in Para 24 of the judgment of Hon'ble Supreme Court in the case of Dr. NG Dastane Vs. Mrs. S. Dastane [1975 (2) SCC 326], wherein it is elucidated as to how to arrive at whether the case on the principles of preponderance probability is made.
12. Coming to Shri Neeraj Kumar, I find that he has not been named by Shri R.N. Zutshi or any other person with regard to abetment of smuggling. The only basis on which Revenue has imposed penalty on him is that there were 25 telephone contacts between him through his mobile number with Mr. Mamoor Khan and one telephone contact with Ms. Olga. But, it is also not disputed that on 22.05.2000 and 01.07.2000, when he was posted in airport, his cell phones location was elsewhere. The said cell phone was not in the name of Shri Neeraj Kumar; it was in the name of Mr. Alok Singh with whom no enquiry was made. Thus, in the wake of the jurisprudence analysed and settled in Para 8 above, the evidence against Shri Neeraj Kumar falls woefully short to sustain the abetment charge and penalty.
13. As regards Shri Yashvir Singh, accused of abetment of smuggling on 24.07.2000 and Shri S.D. Rajpal accused of abetment of smuggling on 04.08.2000 and Shri S.A. Lamb, accused of abetment of smuggling on 18.08.2000 and Shri V.K. Bharadwaj, accused of abetment of smuggling on 18.08.2000, as recorded by ld. Member(Technical), the only evidence relied upon by Revenue is telephonic contact between their mobile numbers with mobile numbers of Shri Mamoor Khan/Ms. Dil Agha/Ms. Olga Kozireva. It is an admitted fact that they have not been named by Shri R.N. Zutshi or any other person nor is there any other evidence against them. There is no evidence that they personally examined the baggage of the Uzbek lady passengers or had facilitated their customs clearance without payment of duty. In the absence of the transcript or record of telephonic conversation, in view of the jurisprudence analysed and settled in Para 8 above, the allegation of abetment and penalty cannot be sustained against these officers even if they had been named by Mr. Zutshi.
14. Regarding Shri Kamal Suman, the officer has been accused of abetting smuggling on 24.07.2000 and 01.08.2000. Revenue relied upon the statement of Shri R.N. Zutshi that Shri Kamal Suman negotiated with Shri Mamoor Khan and Ms. Dil Agha for facilitating smuggling and also one telephonic contact each from his mobile number with Mr. Mamoor Khan and Ms. Olgha Kozireva. The Commissioner observed that this evidence is not sufficient to establish preponderance probability in support of the allegation against him, has decided not to impose penalty on him. The finding of the Commissioner cannot be faulted in the wake of the jurisprudential analysis contained in Para 8 above.
15. I must put it on record that during the hearing these officers vehemently denied the charges and stated that there was no evidence against them. As regards the telephone contacts, they have pleaded that sometimes they used to get telephone calls, which they answered and sometimes when telephone calls were missed, they used to call back not knowing who had called. Even at the cost of repetition, I may state that as has been brought out, the only evidence against the respondents are third party statement(s) and details of telephonic contacts (without transcript or details of conversation) and in the wake of the jurisprudence and judicial precedents discussed and analysed in Para 8 earlier, these are insufficient to sustain charges of abetment even on the principle of preponderance of probability. Therefore, it is not necessary for me to discuss in greater detail the contentions and arguments put forth by the respondents in their defence.
16. I have perused the judgments cited by ld. Departmental Representative with regard to preponderance probability and the scope of the words connivance, collusion, fraud, conspiracy and abetment and I am of the view that notwithstanding of all these judgments, the aforesaid analysis remains valid. In other words, none of the judgments cited by ld. Departmental Representative jeopardize the jurisprudence regarding the efficacy of third party statements and telephonic contacts (without the transcript of the details of conversation) for the purpose of sustaining charge of abetment. I concede the proposition of Revenue that Revenue only has to establish the case on the principle of preponderance of probability (and not on the yardstick of beyond reasonable doubt) but at the same time, I am also conscious of the fact that preponderance of probability howsoever liberally interpreted can never be equated to a mere possibility howsoever strong.
17. In the light of the foregoing, I find the Commissioners findings exonerating each of the respondents legal and proper as has been held by ld. Member (Technical).
18. Thus,
(a) Points No.1 & 2 of the Difference of Opinion are answered as under:-
The Appellate Tribunal can not only go into points arising out of the decision or order as may be specified by the Committee of Chief Commissioners, but also go into the points raised by the respondent in its cross-objections. In other words, the Tribunal is not obligated to confine its scope only to the decision on the points arising out of the order or decision as may be specified by the Committee of Chief Commissioners, but also cover the points raised in the memorandum of cross-objections but in the absence of the cross-objections, the Tribunal is to confine itself only for the determination of such points arising out of the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order.
(b) Point No.3 of the Difference of Opinion is answered as under:-
On the basis of evidence on record against each respondent, the Commissioners findings exonerating each of them are legal and proper and accordingly, the Revenues appeals are to be rejected.
18. These papers are returned to the Division Bench for pronouncement of the majority judgment.
(Pronounced in Open Court on 10.12.2015) (R.K. Singh) Member (Technical) SSK Appeals Nos. C/59 to 72/2008 In the matter of :-
CC, New Delhi Vs. M/s.Kamal Bajaj & Ors.
Final Order No..Dated:
MAJORITY ORDER In view of the majority order, the appeals filed by the Revenue are rejected.
(Pronounced on 30.12.2015 )
( B. Ravichandran ) ( Justice G. Raghuram)
Member (Technical) President