Custom, Excise & Service Tax Tribunal
Ameer Mamikutty vs Cochin-Cus on 6 February, 2026
C/20312 AND OTHER 32 APPEALS
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
1. Customs Appeal No. 20312 of 2017
(Arising out of Order-in-Original No.COC-CUSTOM-000-
COM-51-16-17 dated 03.02.2017 passed by the
Commissioner of Customs, Cochin.)
Ameer Mamikutty,
S/o Shri Mamikutty
Meacherimadom, Appellant(s)
Market PO,
Muvattupuzha - 686 673.
Kerala.
VERSUS
Commissioner of Customs
Custom House
Cochin-682 009 Respondent(s)
Kerala.
WITH
2. Customs Appeal No.20555 of 2017 (Valappil Hamza Vs. CC, Cochin)
3. Customs Appeal No.20599 of 2017 (Mohammed Saleem Konikuzhiyil Vs. CC, Cochin)
4. Customs Appeal No.20600 of 2017 (Mujeeb Rahman KK Vs. CC, Cochin)
5. Customs Appeal No.20601 of 2017 (Vipin M D Vs. CC, Cochin)
6. Customs Appeal No.20628 of 2017 (Sharath M V Vs. CC, Cochin)
7. Customs Appeal No.20629 of 2017 (Nasheed Ameen Vs. CC, Cochin)
8. Customs Appeal No.20630 of 2017 (Jeevan Nair Vs. CC, Cochin)
9. Customs Appeal No.20631 of 2017 (Jithin P.R. Vs. CC, Cochin)
10. Customs Appeal No.20632 of 2017 (Shefil A.B. Vs. CC, Cochin)
11. Customs Appeal No.20633 of 2017 (Rimshad A Vs. CC, Cochin)
12. Customs Appeal No.20634 of 2017 (Chandra Kumar M Vs. CC, Cochin) Page 1 of 66 C/20312 AND OTHER 32 APPEALS
13. Customs Appeal No.20639 of 2017 (Jithin N.C. Vs. CC, Cochin)
14. Customs Appeal No.20640 of 2017 (Prasanna P.K Vs. CC, Cochin)
15. Customs Appeal No.20641 of 2017 (Shamal T K Vs. CC, Cochin)
16. Customs Appeal No.20647 of 2017 (Arun Balakrishnan Vs. CC, Cochin)
17. Customs Appeal No.20648 of 2017 (Sreevalsan C K Vs. CC, Cochin)
18. Customs Appeal No.20649 of 2017 (Baburaj K Hassan Vs. CC, Cochin)
19. Customs Appeal No.20650 of 2017 (Rabins Vs. CC, Cochin)
20. Customs Appeal No.20651 of 2017 (Abins C A Vs. CC, Cochin)
21. Customs Appeal No.20652 of 2017 (Rafeek M M Vs. CC, Cochin)
22. Customs Appeal No.20657 of 2017 (Ajins C A Vs. CC, Cochin)
23. Customs Appeal No.20658 of 2017 (Akhil Kumar K M Vs. CC, Cochin)
24. Customs Appeal No.20659 of 2017 (Riyas @ Mohammed Iiiyas Vs. CC, Cochin)
25. Customs Appeal No.20660 of 2017 (Ashik Ali N A @ Ashiq Tutu Vs. CC, Cochin)
26. Customs Appeal No.20661 of 2017 (Shinoy K Mohandas Vs. CC, Cochin)
27. Customs Appeal No.20701 of 2017 (Ismail M P Vs. CC, Cochin)
28. Customs Appeal No.20721 of 2017 (Asalam Mytheen Vs. CC, Cochin)
29. Customs Appeal No.20748 of 2017 (Nibin K Basheer Vs. CC, Cochin)
30. Customs Appeal No.21130 of 2017 (Yasir Ibnu Muhammed Vs. CC, Cochin)
31. Customs Appeal No.21133 of 2017 (Shinuraj T Vs. CC, Cochin)
32. Customs Appeal No.21458 of 2017 (Aneer Ashraf Nagarambil Vs. CC, Cochin)
33. Customs Appeal No.21596 of 2017 (P.A. Abdul Latheef Vs. CC, Cochin) Page 2 of 66 C/20312 AND OTHER 32 APPEALS (Arising out of Order-in-Original No.COC-CUSTOM- 000-COM-51-16-17 dated 03.02.2017 passed by the Commissioner of Customs, Cochin.) APPEARANCE:
Present for the Appellants:
For Sl.No.1 & 14 - Ms. Maya Menon, Advocate For Sl.No.7,8,10,11,16,17,23,25 and 28 -Mr. Baby M.A., Advocate For Sl.No.19,20,22,24 and 26 Ms. Linda M.J, Advocate For Sl.No.30 - Ms. Vijitha V Advocates For Sl. No. 3 and 4 - Mr. Bindusaran, Consultant For Sl. No. 2,5,6,9,12,13,15,18,21,27,29,31 to 33-None appeared Present for the Respondent: Ms. Arpitha. S, Joint Commissioner (AR) with Mr. Maneesh Akhoury, Asst. Commissioner (AR) CORAM: HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MRS R BHAGYA DEVI, MEMBER (TECHNICAL) Final Order No. 20173 - 20205 / 2026 DATE OF HEARING: 08.08.2025 DATE OF DECISION: 06.02.2026 PER : R BHAGYA DEVI Briefly the facts are based on specific intelligence the officers of Air Intelligence Unit (AIU), Cochin International Airport, Nedumbassery, intercepted a passenger named Shri. Salim Melathu Makkar who arrived by Spice Jet flight No. SG 018 from Dubai to Cochin on 24.05.2015 at the exit gate of Customs arrival Hall of Cochin International Airport, Nedumbassery.
Verification of the travel documents and passport of Shri. Salim Melathu Makkar showed that he was a frequent flyer and he had visited UAE five times in a span of four months during the year 2015. On enquiry, the passenger could not give any proper explanation for the purpose of these visits. No contraband or dutiable goods were recovered from his baggage or person. When questioned in the presence of two independent witnesses, the passenger admitted that he had concealed eight gold bars Page 3 of 66 C/20312 AND OTHER 32 APPEALS totally weighing 8 kgs beneath the seat in the last row of the passenger ferry bus which shuttled them from the Aircraft to the arrival terminal of the Airport. The officers searched the bus bearing Reg. No B2P1M105, parked near Bay No. 1 and found four packages wrapped in black adhesive tapes kept concealed beneath the seat on the left side in the last row. The packages were taken out and the adhesive tape removed from the packages in the presence of passenger, the independent witnesses and the ferry bus driver. It was found that each package carried two numbers of yellow metal bars which appeared to be gold, totalling eight numbers. The gold bars bearing serial numbers E020137, E020138, E020764, E020761, E020809, E020143, E020141 and E020757 had the marking "AL- ETIHAD GOLD DUBAI UAE 995.0. The assayer issued certificate dated 24.05.2015, certifying that these eight bars totally weighing 8 kgs was 995/24 carat pure gold with value amounting to Rs.2,04,73,120/-(Assessable Value) and Rs.2,18,40,000/-(Market Value). The said gold bars, with black adhesive tapes and travel documents were seized under Section 110 of the Customs Act, 1962, under Mahazar dated 24.05.2015 on the reasonable belief that they were liable for confiscation under the provisions of Customs Act, 1962. The passenger ferry bus bearing Reg. No B2P1M105 was also seized. Further Search conducted in the ferry buses parked at Bay 1 resulted in recovery of five bars each weighing one kg, which was concealed beneath the seat in the back row of ferry bus bearing Reg. No. B2P1M106. These abandoned bars examined by the assayer was certified to be 995/24 carat pure gold totally weighing 5 kg with value amounting to Rs 1,27,95,700/- (Assessable Value) and Rs. 1,36,50,000/- (Market Value). The gold bars and the passenger ferry bus were seized under Mahazar dated 24.5.2015. Finally based on the detailed investigations, statements and recovery of gold, show-cause notice dated 14.11.2015 was issued to 58 Page 4 of 66 C/20312 AND OTHER 32 APPEALS appellants as to why gold bars should not be confiscated and penalties be imposed for smuggling of gold. On adjudication, the Commissioner confiscated the gold and imposed various penalties on all the persons involved in the illegal smuggling of gold. Aggrieved by this, out of 54 appellants 33 appellants are in appeal before us.
2. Heard both sides. The Revenue has presented a detailed analysis and has argued that not only 13 kgs of gold that has been confiscated has been smuggled but on various previous occasions, the smuggling of gold has taken place which is evident from the statements, travel documents, seizure of cash etc. On the other hand, the learned counsels representing various appellants have put forth their arguments mainly alleging that the statements were drawn under threat and coercion and that there was no other evidence other than the statements and some of them have requested for cross- examination, which has been rejected.
3. The issue in all these appeals revolves around interception of the passenger Salim on 24.05.2015 and based on his confession, on the same day, the investigating officers confiscated 13 kgs. of gold from two ferry buses which were used to ferry the passengers from the aircraft to the airport. To understand the veracity of smuggling of gold, we need to examine the various modes of alleged smuggling undertaken by the appellants and the consequences of the same based on the evidences placed on record. According to the Revenue there were 3 major channels of smuggling as explained in the flow charts placed below.
Page 5 of 66C/20312 AND OTHER 32 APPEALS Page 6 of 66 C/20312 AND OTHER 32 APPEALS
4. According to the Revenue and the evidences placed on record, Shri Salim Melathu Makkur is the main carrier and he was involved in smuggling 14 kgs of gold on different dates and his trips were sponsored by Shri. Noushad and through his statements, he admits to have smuggled gold and 13 kgs of gold was found under the seat of a passenger of the bus which was confiscated. Since no appeal is filed by Shri Salim Melathu Makkar and there being no claim for the gold of 13 kgs, confiscation of the same stands upheld and sustained. Second prime accused is Shri Noushad and allegation against him is that he handled 1928 kgs. of gold including 8 kgs of gold as a carrier. Evidences on record prove smuggling, abetting smuggling, concealing smuggled goods, transporting smuggled goods and dealing with smuggled goods. No appeal is filed by him.
Page 7 of 66C/20312 AND OTHER 32 APPEALS
5. The entire case revolves around smuggling of foreign origin gold (through the Cochin International Airport Ltd, Nedumbassery (CIAL), by a syndicate headed by P.A. Noushad hailing from Muvattupuzha, Ernakulam District, the Duty Manager and his employees of ground handling agency M/s. Bird Worldwide Flight Services (BWFS) as well as personnel working in airlines and other departments in Cochin International Airport. The racket was exposed on seizure of 13 kgs of foreign origin gold on 24.05.2015, from 2 buses ferrying passengers between the aircraft and the terminal. On 24.05.2015, officers of Air Intelligence Unit (AIU) intercepted a passenger Shri Salim Melathu Makkar, the passenger who arrived from Dubai by Spice Jet flight SG018 and had deposited 8 kg of gold under the seat of a passenger ferry coach. Search of other passenger ferry buses resulted in recovery and seizure of another 5 kgs of foreign origin gold which was also attempted to be smuggled using the same modus operandi. Subsequent investigations unravelled the activities of the smuggling syndicate that was smuggling gold through CIAL in a well organised manner. P.A. Noushad, the kingpin was found to operate three channels for the smuggling activities. As far as the confiscation of the above 13 kgs of gold, there is no appeal and hence, the confiscation is not in dispute.
6. Now let's examine the involvement of the individual appellants. As per Channel-1, seven (7) employees of M/s. Bird Worldwide Flight Services (BWFS), Cochin International Airport Limited, recruited through the Duty Manager Shinoy. K. Mohandas and Ramp Supervisor Bibin Scaria were alleged to have been involved in smuggling gold. One of them is a Customer Service Assistant from M/s. Jet Airways. The total quantity of gold smuggled in through this channel for this syndicate is estimated at 390 Kilograms.
Page 8 of 66C/20312 AND OTHER 32 APPEALS Channel - 1
1. M.V. Sharath Team Leader M/s. BWFS
2. M. Team Leader M/s. BWFS Chandrakumar
3. P.K. Prasannan Operator M/s. BWFS
4. K.M. Akhil Ramp Agent M/s. BWFS Kumar
5. N.C. Jithin Team Leader for Utility Hand, M/s.
BWFS
6. Arun Operator, M/s. BWFS Balakrishnan
7. P.R. Jithin Ramp Agent, M/s. BWFS
8. Shefil A. B Customer Service Assistant, M/s. Jet Airways
7. The Channel-2 was co-ordinated by Faisal.P.A and Saifudheen, a former ground handling staff at CIAL, who is also the nephew of P.P.Ismail, a close aide of P.A. Noushad. Saifudheen recruited the services of following colleagues and acquaintances for smuggling gold out of the airport from the air side/tarmac area. The modus operandi was to walk through the exit gates, concealing the gold in their body. Here also six (6) are employees of BWFS and one of them is Customer Service Host from M/s. Spice Jet Airways. The total quantity of gold smuggled into the country through this channel is estimated at 38 Kilograms.
Channel - 2
1. T.K. Siraj Customer Service Agent M/s. BWFS
2. C.K. Sreevalsan Coach operator M/s. BWFS
3. K.K. Arshad Equipment operator M/s. BWFS
4. Abdul Customer Service Host M/s. Spice Latheef.P.A Jet
5. Bibin.K.Mathew Customer Service Agent M/s. BWFS
6. K.K. Ansal Customer Service Agent M/s. BWFS
7. Jipson Joy Customer Service Agent M/s. BWFS
8. The Channel-3 was directly operated by P.A. Noushad through Jabin. K. Basheer, a Civil Police Officer of Kerala Police, deputed in the Immigration Department of Cochin International Page 9 of 66 C/20312 AND OTHER 32 APPEALS Airport Ltd. (CIAL). Herein, the modus operandi involved carriers (passengers) bringing gold from abroad and hiding it in the vent of air conditioner located inside the toilet in the Immigration Hall. This hidden gold was later retrieved by Jabin. K. Basheer who concealed it inside specially designed waist belt worn by him. The belt was then concealed by an in-shape vest, over which the shirt was worn. Jabin. K. Basheer would then walk out of the airport unhindered, by virtue of his job in Immigration Department of Airport. The smuggled gold was placed in his car and transported to his house either by him or his brother Nibin.K. Basheer and finally handed over to P.A. Noushad. Jabin. K. Basheer was assisted by his brother Nibin.K. Basheer and his father K.A. Basheer. The total quantum of gold smuggled through this channel is estimated at 1500 Kilograms, of which 500 kgs was brought by carrier C.A. Ajins, C.A. Abins, Rabins and Riyas alias Illyas Muhammed. It is the claim of the Revenue that an estimated quantity of 2000 kg. of gold was smuggled by the smuggling syndicate headed by P.A. Noushad through CIAL using the above three channels. Investigations also found that other smaller groups operated with the help of these personnel working in the ground handling agency. They are:
Sl. Persons Involved Quantity of
No. gold
smuggled
1. Headed by Ameer Manikutty. Assisted 5 kgs.
by Baburaj Hassan and
Shinoy.K.Mohandas. Carrier passengers
- P.M. Abdul Majeed and V.A. Sudheer
2. Headed by Salim Mohammed 12 kgs.
Konikuzhiyil and Mujeeb Rehman
Konikuzhiyil - Assisted by Nasheed
Ameen, Rimshad.A Jeevan Nair,
Shinuraj, Rafeek, T.K. Shamal
3. Headed by Hakeem. Assisted by 5 kgs
Shinuraj and Rimshad
4. Headed by Mujeeb. Assisted by Rafeek 9.2 kgs
and Shamal T.K
5. Headed By Mohammed Sadiq,Suhaib, 1.3 kgs
Sajeer, Aneer. Assisted by Shamal T.K
Page 10 of 66
C/20312 AND OTHER 32 APPEALS
9. We find that in any smuggling activity of gold, there are financiers also who are involved in financing purchase of gold and then, the carriers who are involved in transporting the gold from various countries to India and then, we have the facilitators who facilitate in clearing the gold from the carriers to the exit gate of the airports and the persons who transport from the exit gate to the respective persons who are involved in smuggling and illegal activities. In the instant case, as per the Revenue, the financiers are K. B. Fazil, Ameer, Mujeeb, Saleem, Hakkim. The carriers and the facilitators are Saleem, Noushad, P.M. Ismail, Shinoy K. Mohandas, Bibin Scaria, Sudheer V.A, Jabin K. Basheer, K.B.Fazil, Yazir, Saifudheen and the employees of BWFS who facilitated the smuggling are Shinoy K. Mohandas, Bibin Scaria, Sharath, Chandrakumar, Akhil, Jithin N C, Arun, Jithin P R, Shefil, Baburaj. We find that at times the financiers are also the carriers and the carriers are the facilitators and therefore, the entire smuggling activity is carried out by these three categories of persons. The main members of the syndicate are Salim, P.A. Noushad, K. B. Fazil and Faisal P. A. who have not filed any appeal and among the carriers Bibin Scaria, Sudheer V.A, Abdul Majeed, Siraj T.K., Bibin K. Mathews, Anzal, Jabin K. Basheer, Basheer K.A., Saifudheen have also not appealed against the impugned order.
10. Summing up, we find that the entire case revolves around seizure and confiscation of 13 kgs. of gold carried by Salim Melathu Makkar by Spice Jet Flight No.SG 018 on 24.05.2015 and on interception having confessed that he was directed to leave the 8 kgs gold behind the seat of the ferry bus by which he was transported from the aircraft to the terminal. 8 kgs Gold was found in the ferry bus and further 5 kgs was found in another ferry bus behind the seat. Based on detailed investigations, the Page 11 of 66 C/20312 AND OTHER 32 APPEALS Revenue alleged that on previous occasions also, such smuggling happened with the help of the carriers and the facilitators, mainly the BWFS employees and the police officer who was on deputation as Immigration Officer at the Airport. Smuggling is not new to this area in Kerala, report of various instances of smuggling has been happening in Kerala through the international airport which is detrimental to the economy and the security of the nation. Though only 13 kgs. of gold was confiscated based on statements and other corroborative evidences, Revenue alleges that approximately 2000 kgs. was smuggled and accordingly, penalties have been imposed against 54 individuals and out of them, only 33 are in appeal before us.
11. Based on the allegations of the Revenue and the defence placed by the Learned Counsels, the legal issues that arise during the entire proceedings are as follows:
11.1. First argument is that though only 13 kgs. of gold was confiscated and the persons involved in the same were few, the allegations of smuggling have been extended to all others based on the statements and without any corroborative evidences and the Revenue has extended the smuggling to 2000 kgs. of gold without any basis. We are in agreement with the appellants and accordingly, this issue has been clearly dealt by us individually based on the evidences on record and we have limited our observations on imposition of penalty, only to the extent of 13 kgs. of gold being confiscated.
11.2. The second argument is that statements were taken under threat and coercion; hence, cannot be relied upon. The Commissioner has categorically rejected this on the ground that all of them were arrested and produced before the District Magistrate after medical examination. Moreover, the decisions of the Hon'ble Supreme Court relied on by the Revenue are Page 12 of 66 C/20312 AND OTHER 32 APPEALS admissible, if allegations are corroborated with other evidences and hence, these factors have to be sustained wherever the statements have been corroborated with other evidences. We also find that many have not retracted the statements, hence, they cannot claim that there was a threat or coercion.
11.3. The third argument is regarding Section 138B of the Customs Act, 1962 stating that non examination of the statements during the adjudication proceedings vitiates the entire proceedings. This argument of the appellants is rejected for the simple reason that the jurisdictional Hon'ble High Court of Karnataka in the case of Commissioner of Customs, Bangalore vs. Jyothi C. Jain and Ors. dated 13.08.2025 has observed as follows:
"8. The only point that arises for consideration in this appeal is, the correctness of the direction issued by the Tribunal to provide cross- examination of the witnesses. In support of such direction, the Tribunal has placed reliance on Section 138B of the Act. Section 138B is traceable to Chapter XVI of the Act, which deals with 'Offences and Prosecutions'. A plain reading of Section 138B indicates that the provision contemplates cross-examination in the context of proving the truth of facts in a prosecution for an offence under the Act. The provision, by its very language, is applicable only to proceedings relating to offences and prosecutions under the Act. The Tribunal has, therefore, erred in invoking Section 138B while directing cross-examination of the witnesses in adjudication proceedings.
9. The direction of the Tribunal is unsustainable for yet another reason. The Hon'ble Supreme Court, In M/s. Andaman Timber Industries v. Commissioner of Central Excise, Kolkata-II¹, while dealing with the consequences of denial of cross-examination of witnesses, has held as follows:
"6. According to us, not allowing the assessee to cross-examine the witnesses by the adjudicating authority though the statements Page 13 of 66 C/20312 AND OTHER 32 APPEALS of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the adjudicating authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the adjudicating authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the adjudicating authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them."
10. In light of the above judgment, it is only where the statement of a witness has been recorded and such statement is proposed to be relied upon against the assessee that, upon a request made by the assessee, the adjudicating authority is bound to afford an opportunity of cross- examination. In the present case, the Tribunal has erred in issuing a direction for cross-examination without recording any finding as to whether statements of the witnesses were recorded and relied upon against the assessees. The direction to permit cross-examination is, therefore, without any foundation and is unsustainable. Furthermore, since the Tribunal remanded the matter to the adjudicating authority for de novo consideration limited to cross-examination of the panch witnesses, it has failed to examine the other issues raised by the respondent-assessees."
Page 14 of 66C/20312 AND OTHER 32 APPEALS 11.4. Similarly, the Hon'ble High Court of Delhi dated 13th February, 2026 CUSAA 7/2026 & CM APPL. 7007/2026 in the case of Hira Singh S/o SH. Ramdhari Singh, versus Commissioner of Customs (Preventive) New Customs House, New Delhi has observed as follows:
"25. Having regard to the law laid down by the Apex Court in the various judgments such as State of Haryana Vs. Rajmal & Anr.: (2011) 14 SCC 326; Radhakishan Vs. State of UP: 1963 SCR SUPL.(1) 408, on the issue of seizure and the effect thereof, the impact of Section 108 and 123 of the Customs Act and the bindingness of the statement, so also having regard to the law laid down by the Apex Court in the matter of Commissioner of C.Ex., Madras Vs. Systems and Components Pvt. Ltd.:
2004 (165) ELT 136 (SC), the non-consequential ground or the failure of the appellant to demonstrate prejudice for not cross examining the witnesses, the statements were recorded under Section 108 of the Customs Act and in view of the law laid down by the Apex Court in the matter of Kanungo & Company Vs. Collector of Customs & Ors: (1973) 2 SCC 438, wherein it is held that the right to cross examination is not an absolute right, the effect of statement recorded under Section 108 of the Customs Act, we are of the view that no question of law is involved in the present appeal".
11.5. In view of the above, the Counsels arguments with regard to Section 138B is not acceded to. It is also pertinent to note that many of them were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA Act, 1974] and the enormous evidences were considered by the Hon'ble High Court of Kerala and sustained the detention orders issued against these individuals dismissing the writ petitions filed by them.
12. Finally with regard to rejection of cross-examination by the Commissioner, reliance is placed by the appellant on the decision of the Hon'ble Supreme Court in the case of Andaman Timber Industries v. CCE, (2015) 62 taxmann.com 3 (SC) that Page 15 of 66 C/20312 AND OTHER 32 APPEALS cross-examination is the right of the individual and we do not dispute the same. The Revenue has claimed that cross- examination cannot be entertained in all cases as is held in the case of Kanungo Co., Vs. Collector of Customs [1983 (13) ELT 1486], wherein the Hon'ble Supreme Court had held that principles of natural justice do not require that that in every matter, the person who has given the information should be examined in the presence of appellant or allowed to be cross- examined by the person concerned in respect of the statements made before Customs Authorities. Also, in the case of Surjeet Singh Chhabra Vs. UOI [1997 (89) ELT 646] the Hon'ble Supreme Court held that non-allowing of cross-examination is not violative of principles of natural justice. In the case of Jagdish Shankar Trivedi Vs. Collector of Customs, Kanpur [2006(194) ELT 290], the Principal Bench of Hon'ble CESTAT held "so far appellants whose statements were recorded under Section 108 of the said Act and who had clearly confessed to their involvement, there would be no violation of the principles of natural justice." Also relied on the following decisions:
• Maya Mahal Industries Vs. CCE, Meerut [1995(80) E.L.T 118 (Tri New Delhi) • CC Hyderabad Vs ThallajaImpex [2012 (279) E.L.T 433(Tri Bang) • A.G.Corporation Vs. CC, New Delhi [2013 (287) E.L.T. 357 (Tri.- Del) 12.1. Thus, according to the revenue "The general dictum regarding cross- examination is that cross-examination in quasi-
judicial proceedings is not a matter of right of the noticee and a decision regarding the grant of cross-examination is to be arrived by the adjudicating authority depending upon the facts and circumstances of each case. The Apex Court also has held that in quasi-judicial proceedings principles of natural justice do not require examination of persons who had given information in Page 16 of 66 C/20312 AND OTHER 32 APPEALS the presence of the appellants or that they should be allowed to be cross-examined by the appellants on statements made by them before the Customs Authorities and the Tribunals have laid down the guidelines that a co-accused is not required to be cross-examined as it may place him in a situation where he might be forced to incriminate himself".
12.2. We also find the Jurisdictional High Court of Kerala K.P. Abdul Majeed Versus Commissioner of Customs, Cochin:
2014 (309) E.L.T. 671 (Ker.) dated 3-7-2014 in similar set of facts observed as follows:
"14. Having regard to the legal implications evolved from the aforesaid factual situation, it is clear that confession statement of co-accused can be treated as evidence, provided sufficient materials are available to corroborate such evidence. As far as retraction statement is concerned, it is for the pers%on who claims that retraction has been made genuinely to prove that the statements were obtained under force, duress, coercion, etc., otherwise, the materials indicate that statements were given voluntarily. When the statute permits such statements to be the basis of finding of guilt even as far as co-accused is concerned, there is no reason to depart from the said view. It is a question of appreciation of evidence. The original authority has considered the contentions of the petitioner in the following manner :
"35. In this case all persons from whom statements were recorded had given a wealth of details as to how the entire smuggling operation was carried out resulting in the seizure of the gold and these details could have been only in the personal knowledge of the persons who made those statements. The intricate details of movements from one place to another, the type and number of vehicles used, the time when they moved from one place to another are details which cannot be invented by the Customs Officers. By merely retracting from the statements, the persons have only tried their best to avoid the consequence of penal action and in the light of concrete corroborative evidence in the form of seizure of gold biscuits both from the house of Abdul Page 17 of 66 C/20312 AND OTHER 32 APPEALS Rehiman and from the Contessa car, the lorry with a secret cavity, the walkie talkie which was used for communication and the canoe with an outboard motor which was used for bringing the gold from the main vessel to the shore, and the number of cars and motor bikes, it would be futile to expect the adjudicating authority to accept the claim that statements have been recorded under force and they are not voluntary.
36. However, while arriving at the gravity of offence committed by each person who is a party to these proceedings, I have taken into account not the entire portion of the statement given by them but only such of those details which can be confirmed by some form of corroborative evidence. I have also gone by the preponderance of probabilities and accepted circumstantial evidence since in these types of activities of smuggling it is not always possible to catch the culprits red-handed in the actual act of smuggling.
1. Accordingly, I find that K.P. Abdul Majeed the kingpin of the entire operation assisted by various persons in some capacity or the other. No statement could be recorded from Abdul Majeed and even when he appeared once before the Assistant Collector of Customs, S.C.P. Division, Calicut, he never choose to give any statement or volunteered any information. But all the others in these proceedings have implicated his involvements and I have no hesitation to hold that he is the person directly connected with the smuggling of 25 jackets of gold biscuits which were actually seized. He was behind arranging the team for transporting the gold from the main vessel to the sea shore, transferring part of it from the sea shore to the house of Abdul Rahiman and also transporting another portion in the Contessa car parked in the compound wall of the house of K.V. Moosan Haji. I also hold him responsible for the illicit import of the Walkie Talkie found in the lorry and also the fire arm with ammunition found in the house of E.K. Sivanandan."Page 18 of 66
C/20312 AND OTHER 32 APPEALS When such facts are also appreciated and considered by two authorities, we do not think that the questions now raised has any legs to stand.
15. A contention was raised that the accused were arrested on 24-2- 1989, but they were produced before the Magistrate only on 27-2-1989 and in the process, they were ill-treated and manhandled for obtaining statement under Section 108. The Tribunal found that four co-accused were arrested on 26-2-1989. The officers have also indicated during cross-examination that though co-accused were with them, their movements were not restricted. Hence, the Tribunal came to an opinion that if the appellant has a case that the accused were under restraint by the officers, it is for the accused to prove the same and in the absence of any such material, the said contention cannot be considered."
13. On perusal of various decisions as discussed above, we are in agreement with the appellants that cross-examination is justified, provided, there are no other corroborative evidence against them. In the present case we find that the Commissioner in the impugned has placed enormous records and details in justifying the involvement of the appellants. we also find that in many cases the corroborative evidences placed on record has not been challenged with cogent reasons, therefore, the offences committed by many have been upheld by the Hon'ble High Court in approving the detention order under COFEPOSA Act,1974. Salim Melathu Makkar is dead and some were not available even at the time of adjudication proceedings, hence, any cross- examination at this stage, after a decade will not serve any fruitful purpose except for delaying the proceedings. Thus, considering the evidences, we find that the rejection of cross- examination is justified.
14. Out of these 33 appellants, one of the appellant Shinoy K. Mohandas who was the Duty Manager of BWFS during the relevant period and all the co-accused in the gold smuggling Page 19 of 66 C/20312 AND OTHER 32 APPEALS were employees of BWFS and the statements of various employees when corroborated with the statement of Shinoy K. Mohandas, it emerges as to how the employees were used to facilitate the gold smuggling. We find that in his statement dated 13.06.2015, he had specifically stated that P.A. Noushad (no appeal has been filed) was known to him very well, who introduced him to Baburaj Scaria (no appeal has been filed) and also stated that they used to communicate to each other and based on their directions, gold was collected from the passengers and transported to the persons concerned outside the airport. The mobile numbers have been specifically mentioned and there is no retraction, as such, on these Call Data Records. The retraction statement dated 30.07.2015 filed by the appellant only submits that he was being harassed and beaten by the Custom Officers and hence, out of coercion, the statements were given. But it is also on record that after retraction statements were given admitting the offence which were not retracted.
14.1. We also find that many appellants had filed a Writ Petition questioning the preventive detention by the Customs Authorities and one of the Writ Petitioner was Shri. Shinoy K. Mohandas who was detained under the provisions of COFEPOSA Act, 1974. The Hon'ble High Court of Kerala observed as follows:
'(h) In re Shinoy K. Mohandas, WP (Cr) No.58 of 2016 is filed on grounds which include reiteration of all those already noted above and certain other specific issues. It is pointed out that the detenu is never shown to have been involved in any previous criminal offence and being involved in a solitary crime is insufficient to curb the freedom of movement of a citizen. Ext.P4 order of bail was issued with stringent conditions and the detenu was directed not to enter any airport until the charge sheet is filed ог for six months whichever is earlier. It is also the plea on behalf of Shinoy K. Mohandas that the detenu who was working in the Airport since last 10 years has been removed from the service and there is Page 20 of 66 C/20312 AND OTHER 32 APPEALS therefore no chance for him to indulge in any other activity. It is contended that there is inordinate and unexplained delay in passing the order of detention because Salim Melathu Makkar was intercepted on 24.5.2015 and the detention order was issued against Shinoy K. Mohandas on 14.10.2015. According to the writ petitioner, such delay has snapped the live and proximate link between the alleged prejudicial activity and the order of detention'.
14.2 Based on the above allegations, the Hon'ble High Court noted the observations of the investigating authorities as follows:
'(h) Shinoy K. Mohandas was also detained 16.10.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served detenu the 20.10.2015. Two CDs containing video footages on were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation dated 11.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. He submitted another representation dated 19.11.2015, written in Malayalam before the Joint Secretary, COFEPOSA, New Delhi'.
'17. The sponsoring authority's proposals to detain the persons covered by the impugned preventive detention proceedings under the COFEPOSA Act were on the basis of the facts and factors, to be treated as allegations, generating the grounds for preventive detention of those persons and available as part of the grounds of detention as communicated to each among the detenus. They are as follows:
iii. Shinoy Κ. Mohandas coordinated the smuggling operations among airport staff and had recruited Bibin Scaria into the gang and they induced other staff to operate with them. Evidence of purchase of property worth Rs.40 lakhs and deposits worth Rs.24 lakhs was obtained. He smuggled approximately 400 kgs of gold through Airport Page 21 of 66 C/20312 AND OTHER 32 APPEALS for the syndicate and had also obtained remuneration to the tune of Rs.70 lakhs. Material evidence showed that he had contacts with Salim Melathu Makkar, Fazil K.B. and Yasir Ibhu Muhammed.
viii. Bibin Scaria was involved in smuggling, abetting smuggling and transporting of gold. He worked under Shinoy K. Mohandas (another detenu) and smuggled 11 kgs of gold by himself and 64 kgs of gold with his colleagues and received ₹6 lakhs as Another remuneration for smuggling gold. detenu Salim along with Fazil K.B. (another detenu) met Bibin Scaria near Airport to discuss about smuggling. He received ₹90,000/- from the account of Fazil K.B. to his account and used his car and another car handed over to him by Fazil Κ.Β. for transporting gold'.
'19. we have perused the original files of the sponsoring authority and the detaining authority.
20. we have also seen the advice tendered by the Central Advisory Board (COFEPOSA), who heard all the eight detenus from 25.12.2015 to 29.12.2015, as noted in paragraph 15 above.
21. The materials disclosed that the detention order and the grounds of detention were served on the respective detenus under due acknowledgment. The list of Relied Upon Documents and copies of the Relied Upon Documents were also served on each detenu. The video footages were also shown to them, as can be seen from the acknowledgments made in writing by each of the detenus in the present of Jail authorities. The acknowledgment presence of Jail authorities. of receipt of the detention order, the grounds of detention, the list of the Relied Upon Documents and the copies of the Relied Upon Documents are signed by each of the detenus and those acknowledgments are counter signed by the Jail authority who was present while those materials were served.
22. Article 22 (5) of the Constitution of India provides that when any person is detained in pursuance of an order under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has Page 22 of 66 C/20312 AND OTHER 32 APPEALS been made and shall afford him an earliest opportunity of making a representation against the order. Sub-section (3) of Section 3 of the COFEPOSA Act provides that for the purpose of clause (5) of Article 22 of the Constitution of India, communication to person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made as soon as may be after the detention, but soon as may be after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. That provision also prescribes the limits as to time within which such communication has to be made.
23. On the basis of the materials which have been admittedly communicated, therefore examined, is needs what to as to be whether the materials communicated included the grounds on which the detention order has been made and whether those materials would enable the detenu to make a representation, making of which is the legitimate right of the detenu in terms Article 22(5).
24. It is argued on behalf of the detenus that the order of detention issued through the Joint Secretary to Government of India, who was specially empowered under Section 3(1) of the COFEPOSA Act is one which does not disclose the grounds of detention inasmuch as the contents of that order are an admixture of apparently different limbs and components of various clauses of sub-section (1) of Section 3 of the COFEPOSA Act and there is no specific indicator on the face of the order of detention as to what is actually meant by the detaining authority and the said order is issued in such a manner as the real import of the intention the detaining authority in making the order is not communicated to the detenu. The detention order in each case says that the said order is issued 'with a view to prevent him from engaging in abetting, smuggling and transporting of the smuggled goods in future.' The use of the words 'abetting, smuggling and transporting of smuggled goods' in one go, as activity in which the particular detenu is likely to engage in future; according to the submissions on behalf of the detenus; is not referable to the different grounds enumerated in Sub-section (1) of Section 3 of the COFEPOSA Act and that Section 5A of the COFEPOSA Act, would not save the detention orders.Page 23 of 66
C/20312 AND OTHER 32 APPEALS
25. The conjunction used as between the different clauses (i) to (v) of Sub-section (1) of Section 3 of the COFEPOSA Act is "or". The use of the phrase 'engaging in' as a forerunner to the words 'abetting, smuggling and transporting of the smuggled goods in future' has to be therefore understood as engaging in abetting and engaging in smuggling and engaging in transporting of smuggled goods in future. The contents of Ext.P1 to any ordinary prudent literate person would be to understand it so. The dissection and meat mincing attempted on the words of the detention order are merely afterthoughts and generated only for the purpose of building an argument in law and not on facts. we say this particularly because the files of each case would disclose the veracity of the uncontroverted statement in the counter affidavit filed by the detaining authority specifically pleading, without any contradiction through any reply affidavit that each of the detenus had acknowledged the order of detention, the grounds of detention, the list of Relied Upon Documents and the Relied Upon Documents with the translations in Malayalam, the mother tongue of the detenu, and it has been endorsed by every detenu that he has been told in Malayalam, the reasons for being put under preventive detention under the COFEPOSA Act and that he has understood the same. The fact that the detenus are not illiterate and their knowledge of Malayalam and English languages, are matters which cannot be disputed in view of the language, contents and quality of the representations made by or on behalf of each of them. Those materials noticed along with the level of education that each of them have, clearly indicate that they have the ability to understand the contents of the detention order and the grounds of detention as also the contents of the materials served on them in English and Malayalam. A variation in the form in which translation is expressed does not vitiate the requirement to communicate the order and grounds of detention. See for support Devji vallabhbhai Tandel v. Administrator of Goa, Daman & Diu and Another [(1982) 2 SCC 222]. Any defect in the order or its communication, including translations does not vitiate the order when the files, on our examination, bespeak due application of mind by the detaining authority and the availability and consideration of the materials relied on by the sponsoring authority. For further support, see Kamarunnissa v. Union of India and Another [(1991) 1 SCC 128], which Page 24 of 66 C/20312 AND OTHER 32 APPEALS precedent also lays down the principle that non-mentioning of the different clauses of Section 3 (1) of the COFEPOSA Act does not render the detention order invalid.
26. When the detenus are shown to be conversant with English and Malayalam languages, it would be an imprudent judicial exercise, if we were to hold that the translations of the documents into Malayalam should be examined in such a manner as to find out whether there is any jumbling or mixing up of its contents. Except in exceptional situations, translations do deprivement of not result in effective communication or distortion of the contents of the documents in the translated versions. Having examined the in translations, particular, the specific portions pointed out on behalf of the detenus, we do not find our way to come to the aid of the detenus on this count. We also stand advised in this regard by the salutary doctrine of common course of human conduct, which is one of the sound principles of commonsense and which deserves to be duly and effectively applied in such matters. The nature of allegations and the manner of activities, as also the nature of employment of different persons, including in the field of business; ss; one being employed in the Police force, another being employed inside the Airport and such other factors, essentially, indicate that the manner in which the detenus conducting themselves their daily private official and business lives, would itself be sufficient that it leaves no matter of doubt that all of them are conversant enough with English and Malayalam languages to understand the contents of the detention order, its scope and effect and the grounds of detention as also the materials relied on against each of them. There is no breach of Article 22(5) of the Constitution of India in this regard, on an independent examination of the materials. If we were to take a precedent on the issue, we would refer to Sheetal Manoj Gore v. State of Maharashtra and Others [2006 (7) SCC 560].
27. It is the settled position of law that when an order of preventive detention is challenged in a court of law, the enquiry by that court will not be into the truth or otherwise of the facts which are mentioned as the basis of the grounds in the communication made to the detenu under Article 22 (5). The examination of the materials by the court will be confined to the purpose of seeing whether the order of detention is Page 25 of 66 C/20312 AND OTHER 32 APPEALS passed on no material at all. Having examined the materials, we are satisfied that the order has been passed on materials on record. we are, therefore, not to go further to examine whether the materials were adequate for the satisfaction of the competent authority, which again need not be materials, which would be evidence, which ought to stand scrutiny of the court in a criminal trial. If the formalities prescribed by the Constitution and the COFEPOSA Act have been complied with, there would be no further examination by the Court, on an application seeking interference with preventive detention. In support these principles, see Ramesh v. D.M. [AIR 1986 SC 315], State of Gujarat v. Adam [AIR 1981 SC 2005] and Abdulla Kunhi v. Union of India [(1991) 1 SCC 476].
28. Having examined the original records, and the materials as were communicated to each of the detenus along with the detention orders and the grounds of detention, we are of the view that the orders of detention have been issued on the basis of materials which are not extraneous to the purpose of statutory provisions which have been invoked by the detaining authority and the sponsoring authority. No plea of absence of due application of mind is available on the materials in the cases in hand.
29. Having noticed that adequacy or sufficiency of relevant materials is not a matter for consideration in writ jurisdiction dealing with preventive detention, many of the arguments raised by the petitioners, including on the alleged non-availability of certain factors, are not of any importance. The contents of the statements of the detenus given to the Customs Authorities or the effect of the retractions are matters which can be deciphered on the basis of the materials on record similarly, the pendency of the criminal proceedings, bail orders and different remand applications and remand orders are all materials on record. This is not as if the sponsoring authority had omitted to place any material of such importance which had resulted in deprivation of appropriate decision at the hands of the detaining authority in terms of law. The materials which were available with the detaining authority have been provided by the sponsoring authority and the materials which have been communicated to the detenus along with the grounds of detention were materials which cannot be treated as sufficiency or irrelevant. That being not so, Page 26 of 66 C/20312 AND OTHER 32 APPEALS otherwise is matter of review. Hence, we do not find any reason to go into an examination as to whether non-production of certain other materials had vitiated the decision making process carried out by the detaining authority on the basis of the available materials.
30. In a couple of cases, personal reasons and non-availability of opportunity to be involved in the activity of the Airport are pointed out. The fact that one of the detenus who was then on deputation with the Emigration Department, had later been repatriated to the parent department, that is State Police Force, is also pointed out. The plea of another is that he stands precluded through bail orders from entering the Airport venue. We are not impressed that these factual situations, even they are true, are insufficient to hold that the detaining authority could not, or, ought not, to have entered satisfaction as to the requirement of passing the impugned detention orders.
31. For the aforesaid reasons, we are satisfied that no ground exists to interfere with the impugned orders of detention and grant the reliefs sought for in the writ petitions. petitions, hence, fail. In the result, these writ petitions are dismissed'.
14.3. Therefore, taking into consideration the enormous data and evidences placed on record by the investigating authorities and having noted by the Hon'ble High Court based on which the petitioner's plea has been rejected, we do not find any cogent reasons to reject the contentions of Revenue. It is also pertinent to note that the Hon'ble High Court of Kerala took note of all the evidences and categorically held that they are satisfied based on the evidences placed on record that the detention orders under the COFEPOSA Act,1974 are valid. The Hon'ble High Court also observed that 'we are of the view that the orders of detention have been issued on the basis of materials which are not extraneous to the purpose of statutory provisions which have been invoked by the detaining authority and the sponsoring authority'.
Page 27 of 66C/20312 AND OTHER 32 APPEALS 14.4. Ms. Linda M.J, Learned Counsel submitted that except for alleging that statements have been taken under threat, there are no other evidences to disprove the fact that Shinoy K. Mohandas is the Duty Manager of BWFS in-charge of the buses that ferry the passengers and it is on record that the confiscated gold was found in these buses and also the use of Hyundai car which was owned by him, which was used to transport the smuggled gold is not challenged with cogent evidences. Moreover, those implicated him and worked in committing this offence have not filed any appeal nor challenged the impugned order. The call data records placed by the Revenue along with the specific numbers evidencing that the persons contacted by are all part of the syndicate are not challenged. The appellant had given another statement in September after retracting the earlier statement but the later statements were not retracted, thus prove that these are all made only to avoid the consequences of the alleged offence committed by them. However, taking into consideration the fact that 13 kgs. of gold were actually recovered and confiscated which has been upheld, the penalty imposed on the appellant is reduced from Rs.2,00,00,000/- to Rs.25,00,000/- under Section 112(a) & (b) of Customs Act, 1962. Accordingly, confiscation of Hyundai i10 car is also upheld along with the redemption fine. However, there being no evidence to connect the fixed deposit of Rs.24,00,000/- to be the sale proceeds of the smuggled gold, the same is set aside along with confiscation of 10 foreign liquor bottles.
15. Similarly, in the case of Yasir Ibnu Muhammed who never responded to any of the summons, no statements were recorded; however, the call records of Shinoy's mobile number show that he had contacted Yasir Ibnu Muhammed (9946499990). The statements of other co-accused also prove the involvement of Yasir Ibnu Muhammed in utilizing the Page 28 of 66 C/20312 AND OTHER 32 APPEALS services of BWFS employees for smuggling gold. The Revenue has also placed on record, the bank statements transferring money to the above accused persons. Yasir Ibnu Muhammed also was one of the persons detained under the COFEPOSA Act, 1974 which was upheld by the Hon'ble High Court of Kerala wherein it was that:
"(e) Yasir Ibnu Muhammed was detained on 16.11.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.11.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Prison, Superintendent, Central Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 21.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 28.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. The mother of that detenu filed the captioned WP(Cr) No.496 of 2015 dated 7.12.2015."
15.1 Also, the Hon'ble High Court noted that Yasir Ibnu Muhammed knows English and Malayalam and he is a Postgraduate in Business Management and had graduated from the University of Bedfordshire, United Kingdom and the observations of the Hon'ble High Court already reproduced at Para 22 clearly upholds the detention orders under the COFEPOSA Act, 1974. The Revenue has also placed on record the tickets booked for Yasir Ibnu Muhammed but paid by P.A.Noushad which also proves the fact that Yasir Ibnu Muhammed and P. A. Noushad were involved in these activities.
Page 29 of 66C/20312 AND OTHER 32 APPEALS Page 30 of 66 C/20312 AND OTHER 32 APPEALS Page 31 of 66 C/20312 AND OTHER 32 APPEALS Page 32 of 66 C/20312 AND OTHER 32 APPEALS Page 33 of 66 C/20312 AND OTHER 32 APPEALS Page 34 of 66 C/20312 AND OTHER 32 APPEALS Page 35 of 66 C/20312 AND OTHER 32 APPEALS Page 36 of 66 C/20312 AND OTHER 32 APPEALS Page 37 of 66 C/20312 AND OTHER 32 APPEALS 15.2 Ms. Vijitha. V, Learned Counsel on behalf of Yasir submitted that the Appellant requested for cross-examination of key witnesses and an opportunity for personal hearing, however, without granting the same, the impugned order came to be passed in violation of principles of natural justice. It is stated that the order also heavily relies on alleged Call Data Records (CDRs) and WhatsApp communications, which are neither duly certified as per Section 138C of the Customs Act, 1962, nor admissible in law. The Appellant was under preventive detention under COFEPOSA from 16.11.2015 to 16.11.2016 and was thereby incapacitated from effectively participating in the adjudication process during that period. It is submitted that the adjudicating authority did not provide fair and meaningful opportunity to rebut the allegations which violates the mandatory safeguards under Section 124(c) and Section 122A(2) of the Customs Act, 1962. Relying on the Hon'ble Supreme Court in Andaman Timber Industries v. CCE, 2017 (50) STR 93 (SC), it is submitted that the right to test the veracity of evidence through cross-examination.
15.3 It is further submitted that no evidence has been furnished to show that such WhatsApp messages originated from the Appellant's phone; there is no forensic report or metadata establishing that the Appellant sent or received any such messages. Relies on the decision of the Hon'ble Supreme Court in ADG, DRI v. Suresh Kumar and Co. Impex Pvt. Ltd. (2025 KHC Online 6762). Further, it is stated that the allegations levelled against the Appellant rest primarily on the statements of four co-noticees - Noushad P.A., Shinoy K. Mohandas, Baburaj K. Hassan, and Ashiqu M. Shanavas, none of which are consistent, reliable, or independently corroborated which was later retracted. In support, she placed reliance on decisions rendered by the Hon'ble Supreme Court in the cases of Page 38 of 66 C/20312 AND OTHER 32 APPEALS Commissioner of Customs v. Ganpati Overseas: 2023 (386) ELT 802 (SC) and Vinod Solanki v. Union of India:
2009 (233) ELT 157 (SC).
15.4 The Commissioner in the impugned order has categorically held that four summons were issued to the appellant and he had not responded to any of the summons.
Though reply was filed to the show-cause notice and thereafter, he failed to appear for the personal hearing. In view of the above, the appellant is not justified in claiming that the principles of natural justice were not followed. With regard to cross-examination and retraction of statements, we have already held that the persons who have implicated the appellant are not before us in appeal and cross-examination is not warranted unless the statements are not corroborated with other evidences. In the case of the appellant, enormous data has been placed on record by the Revenue and these details are not countered by the appellant. Having himself not appeared for the summons, cross-examination of Salim Melathu Makkar who is dead and P.A.Noushad who has not appealed against the order will not yield any result except to delay the proceedings. With regard to Section 138B of the Customs Act, 1962, the Hon'ble High Court of Karnataka in the case of CC, Bangalore vs. Jyothi C. Jain and Ors. (supra) has categorically held that only in case of prosecution cases, it could be invoked. Moreover, in this case, the evidences placed on record by the authorities concerned has been found to be sufficient for detaining the appellant under the COFEPOSA Act, 1974. However, we find that the Commissioner in the impugned order observed as follows:
'The exact quantum of gold smuggled using this channel cannot be determined with absolute certainity given the secrecy of the operations as well as by the fact that no documentary evidence was left behind by the members of the smuggling syndicate. The quantum of gold that has been Page 39 of 66 C/20312 AND OTHER 32 APPEALS smuggled using the channel wherein Yasir was involved was arrived at based on statements of other persons who were involved in smuggling in the same channel. It was Shinoy.K. Mohandas and Baburaj Hassan who revealed that Yasir Ibnu Mohammed sent photographs of the carrier passengers through WhatsApp for the purpose of identification. This was revealed in their statement under Section 108 of Customs Act, 1962, and hence these are admissible evidence in proceedings under Customs Act, 1962'.
15.5 In view of the above, taking into consideration the fact that only 13 Kgs. of gold have been confiscated and there is no evidence of other smuggling activities, imposition of penalty of Rs.2,00,00,000/- is exorbitant, accordingly the same is reduced to Rs.25,00,000/-.
16. Arun Balakrishnan, Sreevalsan C.K and Akhil Kumar K.M., employees of BWFS who are alleged to have been the facilitators and based on the investigations held them to have smuggled gold and imposed penalties on them. Similar allegations were made against Shefil A.B., Jeevan Nair and Rimshad A the employees of Spice Jet Airlines, Nasheed Ameen (Carrier), Akhil Kumar, K.M., Ashiq Tutu /Ashik Ali N.A. (Manager at a Petrol Pump), Aslam Mytheen (contract worker) on whom penalties were imposed.
16.1. Shri Baby M.A, Learned Counsel for the appellants Shefil A.B., Arun Balakrishnan, Sreevalsan C.K., submitted they are all employees of BWFS and their access to the restricted areas inside the airport cannot be a ground for imposing penalty alleging that they had facilitated smuggling of gold. Also appearing for Nasheed Ameen (Carrier), Jeevan Nair and Rimshad A (Spice Jet employees), Akhil Kumar. K.M., Ashiq Tutu /Ashik Ali N.A. (manager at a Petrol Pump), Aslam Mytheen (contract worker) in his submissions has stated that the entire allegation on these individuals is made only based on the Page 40 of 66 C/20312 AND OTHER 32 APPEALS statements which were taken under threat and coercion. It is stated that even though 57 individuals were alleged to have been involved in purported smuggling of gold to the tune of 2000 Kg (Approx), the actual recovery of the smuggled gold is 13 Kg. and 3,067.38 grams of gold jewellery only. There was no further inquiry conducted by the department to find out the gold purportedly smuggled into India and the whole case is made out of statements recorded under Section 108 of the Customs Act, 1962 at the time of custodial interrogation under threat, duress and coercion which were subsequently retracted. Relying on the decision of Hon'ble High Court of Madras in the case of Commissioner of Customs, Chennai vs. Sainil Abideen Neelam: 2014 (300) ELT 342 wherein it was held that in the absence of substantiate evidence, the statements cannot be justified as evidences, hence the impugned order cannot be sustained. Further, it is also submitted that though the recovery and confiscation of gold was only 13 kgs., the penalties are imposed on large quantities of gold said to have been smuggled only based on the statements cannot be sustained.
16.2. In all the above cases, the Commissioner observed that the allegation that the statements were taken under threat, torture, inducement, etc., lacks merit, since they were all arrested and produced before the Additional Chief Judicial Magistrate (ACJM) (Economic Offence) on the same day, after medical examination, following which they were remanded to judicial custody. The medical report of the competent officer makes no mention of any injuries on them and had given a clean chit of health. When produced before the ACJM, Ernakulam, no allegation of torture or coercion by the investigating officers was made. These allegations can only be considered as an afterthought and an attempt to evade the consequences that emerge from their actions as detailed in their Page 41 of 66 C/20312 AND OTHER 32 APPEALS statements. It is further stated that the validity of statements recorded under Section 108 of Customs Act, 1962 as evidence in proceedings in Customs Act, 1962, and the effect of retraction on the said validity has been examined by Hon'ble Supreme Court and Hon'ble High Court of Kerala in following decisions in the case of Surjeet Singh Chhabra Vs. UOI [1997 (89) ELT 646] wherein it is held that "...confession statement made before Customs Officers though retracted within six days is an admission and binding as the said Customs officers are not police officers...."
Also relying on the decision of the supreme court in the case "K.I. PAVUNNI Vs ASSTT. COLLR. (HQ.), C. EX. Collectorate, Cochin [1997 (90) E.L.T. 241 (S.C.) wherein the Hon'ble Supreme Court held that:
".... It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base confiction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution." (para 25) Page 42 of 66 C/20312 AND OTHER 32 APPEALS Further, relying on the decision in the case of in the case of Vinod Solanki Vs. UOI: 2009 (233) ELT 157, Hon'ble Supreme Court held that:
"...With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors ..." a mere retraction of a confiscation may not be sufficient to make the confessional statement irrelevant for the purposes of a proceeding in a criminal case or quasi criminal case....."
Similarly, in K.P. Abdul Majeed Vs. Commissioner of Customs Cochin [2014(309) ELT 671] Division Bench of Kerala High Court had held that:
"It is clear that confession statement of co-accused can be taken as evidence. As far as retraction statement is concerned, it is for the person who claims that the retraction has been made genuinely to prove that the statement was obtained under duress, force, coercion etc.,. otherwise the material indicates that they were given voluntarily. When the statute permit such statements to be the basis of finding of guilt even as far as co accused is concerned, there is no reason to depart from the said view".
16.3. We find that except Sreevalsan C.K, all others have retracted their statements. However, as observed by the Commissioner, when all these persons were taken into judicial custody and medical examination was undertaken at that point of time, there was no allegation of torture or coercion and therefore, these retractions have to be considered only as an 'afterthought' as is held by the Commissioner in the impugned order. We also find that Shefil A.B. and Nasheed Ameen have requested for cross-examination of the persons who have implicated them. Since, Bibin Scaria who has implicated Shefil Page 43 of 66 C/20312 AND OTHER 32 APPEALS A.B. has not filed any appeal accepting the allegations against him, his statements become valid and moreover, he was detained under COFEPOSA Act, 1974 which was justified by the Hon'ble High Court of Kerala; therefore, cross-examination of the person will not be of any consequence that too taking into consideration the fact that the alleged offences were in the year 2015 and a decade has passed since then. However, since there are no other evidences placed on record to implicate Shefil A.B. on whom the allegation is 2 kgs of gold were smuggled and penalty of Rs.1,00,000/- was imposed except his own statement and Bibin Scaria statement, we find no justification in imposing penalty on Shefil A.B. 16.4. Similarly, Nasheed Ameen's request for cross- examination of Rimshad. A who is another co-accused will also have no consequence since all of these persons have been implicated as facilitators in smuggling of gold. However, taking into consideration that he was implicated for smuggling of 1 kg. of gold, only based on his statement corroborated with others co-accused statements we do not find any justification in imposing penalty. Accordingly, the same is set aside.
16.5. Sreevalsan C.K. baggage tractor driver, an employee of M/s BWFS in Cochin International Air Port, in his statement dated 09.06.2015 and 21.06.2015 admitted that Siraj, a former employee of Spice Jet had introduced him to gold smuggling and that on various occasions, he smuggled gold stored in his pocket and dropped in the flush tank on the ramp side of the toilet and that he had received remuneration to the extent of Rs.5.25 lakhs, out of which Rs.2.5 lakhs was found in his residence recovered by the Customs authorities. Since these statements were not retracted the allegations against him are upheld. However, taking into consideration that only 13 kgs. of gold was confiscated and involvement of smuggling of 21 kgs. of Page 44 of 66 C/20312 AND OTHER 32 APPEALS gold by Sreevalsan C.K. only based on the statements cannot be justified. Similarly, Jeevan Nair and Rimshad who were employees of Spice Jet Airways also admitted to have smuggled gold, Arun Balakrishnan and Akhil Kumar employees of M/s Bird Worldwide Freight Services (BWFS) in their statements confessed to have smuggled gold by carrying the gold out of the airport premises having accessed to the restricted areas of the airport premises.
16.6. In all these cases, since their retractions as is held by the Commissioner are only an 'afterthought' and no cross- examination has been asked by them, therefore, taking into consideration their statements and the fact that only 13 kgs. of gold have been recovered, we do not find any reason to disagree with the observations of the Commissioner in view of the decision of the Hon'ble High Court of Karnataka in the case of Rajendra Prakash Pawar Vs. Commissioner of Customs, Mangalore 2020 (374) E.L.T. 10 (Kar.) dated 11.03.2020 wherein it was observed that "10. Insofar as, merits of the case is concerned, it would clearly emerge from the orders of the original authority as affirmed by the appellate authority the statement of appellant recorded under Section 108 of the Customs Act penalty under Section 112(a) came to be imposed. In fact, whatsapp messages exchanged between the noticees including the appellant herein, which formed part and parcel of the show cause notice and adjudication order, it came to be held that appellant herein has admitted in his statement furnished under Section 108 of the Customs Act and his role in the act of smuggling of gold or in other words, appellant has admitted his guilt, which statement so tendered by him was before the Customs officers, who is not a police officer. A statement of an accused under Section 108 when recorded by a Customs Officer the safeguards provided under Section 164 Cr.P.C. is not required to be followed. It is in this background, original authority as well as appellate authority have examined the statement".
Page 45 of 66C/20312 AND OTHER 32 APPEALS 16.7. In view of the above, taking into consideration 13 kgs gold seized and confiscated and having proved it is smuggled gold the penalty on Sreevalsan C.K is reduced from Rs.9,00,000/- to Rs.5,00,000/- (Rupees Five Lakh Only), penalty is reduced from Rs.5,00,000/- to Rs.2,00,000/-
(Rupees Two Lakh Only) against Jeevan Nair;
Rs.3,00,000/- to Rs.1,00,000/- (Rupee One Lakh Only) against Arun Balakrishnan and since the amount of Rs.50,000/- recovered from his premises cannot be correlated to the proceeds of smuggled goods, the same is held to be not liable for confiscation. Penalty against Akhil Kumar is reduced Rs.8,00,000/- to Rs.4,00,000/- (Rupees Four Lakh Only), the confiscation of Honda city car is upheld. However, the redemption fine is reduced to Rs.1,00,000/- (Rupees One Lakh Only) and against Rimshad. A, penalty is reduced from Rs. 6,00,000/- to Rs.3,00,000/- (Rupees Three Lakh Only).
17. In the case of Aslam Mytheen and Ashiq Tutu alias Ashik Ali.N.A, no statements have been recorded and the person who has implicated them is not before us. Since, the allegation against them is based on the statements of others and investigation has not brought in the exact role of these two individuals except for stating that they were used in transporting the gold from the airport to outside the airport, there is no other evidence on record. Hence, we do not find any reason to impose penalty on these two individuals.
18. The Revenue with regard to Riyas, Rabins, Abins and Ajins (Carriers) submits that all have been implicated by Jabin K. Basheer who stated that out of 1500 kgs. of gold, 500 kgs. was brought in by them along with others. All have not given any statements though they replied to the show-cause notice Page 46 of 66 C/20312 AND OTHER 32 APPEALS and appeared for the personal hearing. The Commissioner in the impugned order stated that Jabin K. Basheer since not retracted his statement, the same is valid and moreover, the frequent travels by both of them especially when Jabin K. Basheer was on duty proves the fact that they were the carriers of the smuggled gold. It is shown that out of 38 times that Jabin K. Basheer was on duty, they have travelled 31 times and also there has been no travel when Jabin K. Basheer was on leave. It is also brought on record that on arrest of P. A. Noushad, the kingpin of the syndicate, the travels were stopped. The fact that both of them did not appear for recording any statement and did not cooperate with the investigating authorities goes to prove that they had no substance to retract the evidences placed by the investigating authorities. Having not given a statement, their request for cross-examination cannot be entertained, moreover when Jabin K. Basheer has not filed an appeal nor has retracted his statement. The travel details are listed below:
Page 47 of 66C/20312 AND OTHER 32 APPEALS Page 48 of 66 C/20312 AND OTHER 32 APPEALS Page 49 of 66 C/20312 AND OTHER 32 APPEALS Page 50 of 66 C/20312 AND OTHER 32 APPEALS Page 51 of 66 C/20312 AND OTHER 32 APPEALS Page 52 of 66 C/20312 AND OTHER 32 APPEALS 18.1. The Learned Counsel Mrs. Linda on behalf of Riyas, Rabins, Abins and Ajins submitted that no opportunity was provided to cross-examine co-noticees Shri Jabin K. Basheer, Shri Sudheer V, and Shri P.A. Noushad. It is further stated that the impugned order has placed sole reliance on their unverified statements, which violates the principles laid down by the Hon'ble Supreme Court in Andaman Timber Industries v.
CCE: (2015) 62 taxmann.com 3 (SC), wherein it was held that denial of cross-examination violates the principles of natural justice, rendering the order unsustainable. It is also stated that no contraband, gold, or incriminating documents were recovered from the appellant's possession and penalty has been imposed solely on not proved statements of co-noticees alleging the appellant's involvement in smuggling gold through Cochin International Airport. It is stated that the appellant is a businessman who regularly travels abroad for sincere business purposes and Shri Jabin K. Basheer, as an Immigration Officer, is expected to be present regularly at the airport, such coincidence does not imply conspiracy or collusion. No call records, communications, or interactions have been submitted to show any link between the appellant and the said officer. The documents relied on to match duty rosters and travel history are Page 53 of 66 C/20312 AND OTHER 32 APPEALS mere photocopies, and do not comply with Section 138C of the Customs Act, 1962 which mandates that certified copies must be furnished. Non-appearance alone cannot be equated with presumption of guilt, particularly in the absence of any substantive evidence. The clubbing of the appellant's case with that of Salim Melathu Makkar, in the absence of evidence, is arbitrary, unjustified and legally unsustainable. The co-noticees may have made statements under duress, inducement or to shift blame, such statements cannot be relied upon unless subjected to the test of cross-examination. The department has failed to establish any financial transaction, monetary gain or link to proceeds of smuggling.
18.2 We find that all the appellants Rabins, Riyas, Abins and Ajins did not respond to the summons and appear before the investigating authorities in spite of repeated summons issued to them, hence no statements have been recorded from them. The person Jabin K. Basheer who has implicated both of them in his statements dated 04.07.2015, 05.07.2015 and 16.07.2015, which were not retracted. We also find that Jabin K. Basheer was a responsible civil police officer from Kerala Police who was on deputation as an Immigration Officer at Cochin International Airport Ltd. during the relevant period. He has in his statement stated that Rabins, Riyas, Abins and Ajins were carriers, who smuggled gold from Dubai to Kochi Airport who used to leave the gold in the flush tank of the toilet in the immigration hall which was collected by Jabin K. Basheer and delivered outside the airport. It is also stated that the gold was concealed in the AC vent in the toilet and all the above persons were regularly involved in smuggling of the gold. Jabin K. Basheer was also detained under COFEPOSA Act, 1974 alleging against him that he was involved in smuggling of 1,500 kgs of gold for P. A. Noushad through Cochin Airport. The modus operandi was to Page 54 of 66 C/20312 AND OTHER 32 APPEALS have the smuggled gold being carried by the carrier passengers into the toilet of the immigration hall and to conceal the same in the air-conditioning duct and thereafter, the same was carried outside the airport by Jabin K. Basheer by concealing in his body and to transport the gold into the car. These materials placed on record were upheld by the Hon'ble High Court of Kerala and accordingly, dismissed the writ petitions filed by the petitioner Jabin Basheer. In this back ground, we do not find any reason to doubt the evidentiary value of the statement given by Jabin K. Basheer, especially when no appeal has been filed by him nor he has retracted his statement. Any cross-examination will not serve any purpose as the entire allegations against him are sustained. Moreover Rabins, Abins, Riyas and Ajins have not appeared for the summons; thus, violating the rule of law to appear before the authorities when they were summoned that too when they could file the reply to the notice and appear for personal hearing. Enormous data has been placed on record to show that number of times these individuals have travelled when the immigration officer was on duty and no travels happened when he was on leave. This fact cannot be brushed aside stating that it was just a coincidence as claimed by the learned counsel. There is nothing on record to show that these frequent trips were business trips and such business trips were missing on the days when Jabin K. Basheer was on leave. From the records, we find that there is sufficient evidence to show that they were the carriers and therefore, the request for cross-examination is only to delay the proceedings, hence, rejected. The penalty imposed on them to the extent of Rs. 50,00,000/- on Ajins & Riyas; Rs.60,00,000/- each on Abins and Rabins which seems to be abnormally high when the amount of gold actually confiscated is only 13 kgs. worth of Rs.4,00,00,000/-. We also find that only Rs.15,00,000/- has been imposed on Salim Melathu Makkar who was the main person, where on interception the 13 kgs. of gold Page 55 of 66 C/20312 AND OTHER 32 APPEALS was located. Considering all the above factors, the penalties are reduced to Rs.15,00,000/- (Rupees Fifteen Lakhs Only) on each of the 4 appellants.
19. With regard to P.K. Prasannan another BWFS employee in his statement admits to have smuggled gold to the extent of 40 kgs. The Call Data Records of P. K. Prasannan have been traced to show that he made calls to the passenger in the ferry bus to hide the gold under the seat which was admitted by him in his statement. The call was received from 7561827696 and it was received by a person 9995404003 and the statements of Salim Melathu Makkar, Prasannan and Arun, correlate to these calls. Upon searching office residence, departmental officers recovered Rs.40,000/- and an invoice showing purchase of six (6) pieces of gold jewelry from Bhim jewels worth Rs.1,69,850/- accordingly, penalty of Rs.20,00,000/- was imposed for alleged smuggling of 44 kgs. of gold.
19.1. Similarly, Ameer Mamikutty as per the revenue also admitted his role in the smuggling of gold through Cochin International Airport in his statements and statement of Ameer Mamikutty corroborates with the statements of other accused in this case. It is stated that Ameer Mamikutty has denied that 3067.380 gms of gold ornaments recovered from his shop were made from smuggled gold but failed to produce any evidence detailing the purchase of the ornaments or the gold used in making the ornaments. In the absence of any such evidence, the revenue held that the ornaments are made from smuggled gold, since as per the statement of Ameer Mamikutty, out of the 5 kgs of gold smuggled, he sold 1.8 kgs of gold and retained 3.2kgs of gold to make ornaments and after taking into account the wastage, 3.2 kgs of gold when converted, results into approximately 3 kgs of gold ornaments, the same was seized Page 56 of 66 C/20312 AND OTHER 32 APPEALS under Mahazar and the Commissioner in the impugned order confiscated the same.
19.2. The Learned Counsel, Mrs. Maya Menon in the case of Prasanan P.K, it is submitted that the entire allegation is based on statements and hence, cannot be taken as conclusive proof. It is also submitted that the gold jewelry was purchased by him from his savings and his retraction sent on 07.11.2015 has not been considered. It is further submitted that he was used as a driver at times and being an employee of BWFS had access to restricted areas and that does not in any way implicate him in gold smuggling. With regard to Ameer Mammikutty, she submits that the case is based on unsustainable evidences and the entire case is built only based on statements which have been recorded under threat of arrest, which have no evidentiary value as held in the case of CC Chennai Vs. Sainil Abiden Neelam: 2014 (300) ELT 342. There is no evidence to prove that the Toyota Innova car was used for transporting any smuggled gold, hence, confiscation of the same is illegal. Reliance was placed on the decision of Hon'ble Supreme Court in the case of Hindustan Steel Vs. State of Orissa: 1978 (2) ELT J159 (S.C.).
19.3. We find that the main kingpins of the syndicate Salim Melathu Makkar, Shinoy K.M and Bibin Scaria have implicated Prasannan P.K and none of the above have filed an appeal before us. All the three have been detained under COFEPOSA Act, 1974 which has been upheld by the Hon'ble High Court of Kerala. The calls made to the passenger in the bus and the mobile numbers mentioned by the investigating authorities have not been disputed. There is no doubt that being the BWFS employee and having access to the restricted areas, he has facilitated in smuggling of gold. However, taking into consideration only 13 kgs of gold was confiscated, penalty Page 57 of 66 C/20312 AND OTHER 32 APPEALS imposed on Prasannan.P.K is reduced from Rs.20,00,000/- to 10,00,000/- (Rupees Ten Lakhs Only).
19.4. As per the Revenue AMEER MAMMIKUTTY -
C/20312/2017 owns a jewellery store named Jewel Park and the Toyota Innova Car which was used to transport gold 3067.38 gms of gold ornaments was seized from Jewel Park. According to the Revenue, Ameer Mamikutty in his statements admitted his role in the smuggling of gold through Cochin International Airport which is corroborated with the statements of Abdul Majeed, V.A. Sudheer, Shinoy K. Mohandas and Baburaj K. Hassan who have admitted organised smuggling operations with the help of Fazil, Baburaj K. Hassan and Shinoy. K. Mohandas inside the airport, for receiving the gold, concealing it and smuggling it out undetected. He has thus organized in the entire operation by abetting smuggling of 5 kgs. of gold out of the airport along with his accomplices.
19.5. The Learned Counsel, (Ms. Maya Menon) contented that the entire all allegations are based on unsustainable evidences. It is stated that other than statements there is no evidence to prove that the jewellery was made out of the smuggled good and also the seizure and confiscation of the vehicle Toyota Innova car is illegal and unsustainable. Relying upon the decisions of the Supreme Court in the case Hindustan Steel versus State of Orissa 1978 (2) ELT J159(S.C.) and AB Jiwani versus Collector of Customs 1990 (47) ELT 161 (S.C). It is submitted that the penalties are unjustified. Also relied on Commissioner of Customs (Imports) Vs. Sainul Abideen Neelam and Another (2014) 300 ELT 342 (Mad.).
19.6. The Revenue only based on the statements of Ameer Mamikutty and other co-accused has held that he financed gold smuggling and received the smuggled gold with the help of Fazil Page 58 of 66 C/20312 AND OTHER 32 APPEALS K.B. and other carriers. Though Ameer Mamikutty has denied that the 3067.380 gms of gold ornaments recovered from his shop were made from smuggled gold this plea has been rejected on the ground no evidence regarding purchase of the ornaments or the gold used in making the ornaments was produced. His contention regarding filing of VAT Returns have has been rejected on the ground that they are undated and unsigned. And cross-examination sought by Ameer was also denied and the statement by Ameer was retracted. Based on the above observations the gold jewellery was seized and penalty was imposed on Ameer Mamikutty. We find there is nothing on record to show that financing was done by Ameer Mamikutty and the gold jewellery seized by the revenue was made out of the smuggled gold. The burden of proving that the jewellery is made of smuggled gold is on the revenue which has not been discharged, hence the question of seizure or imposition of penalty only based on the statements is unjustified. Accordingly, we set aside the confiscation of gold jewellery and the vehicle along with the penalty imposed on him.
20. With regard to Muhammed Saleem Konikkuzhiyil and Mujeeb Rehman Konikkuzhiyil similar allegations of smuggling of gold has been made by the Revenue based on the statements of others and no statement was recorded from them as they did not respond to the summons.
20.1 Mr. Bindusaran, Learned Counsel with regard to the above two appellants submits that the allegations are baseless since the statements of others have not been corroborated and the request for cross-examination having not been considered all the allegations needs to be set aside.
20.2 Since no statements have been recorded from the above two appellants and both of them have not confessed Page 59 of 66 C/20312 AND OTHER 32 APPEALS about any illegality activities based on others statements alone, the allegations cannot be justified. Moreover, Salim Melathu Makkar was intercepted and based on his statements 13 kgs of gold were recovered and these 13 kgs of gold cannot be in any way linked to these individuals as Revenue has not placed any evidence to link the same. Therefore, we do not find any justification in sustaining the penalties against these two individuals.
21. Next is the employees of BWFS who were used either as carriers or as facilitators to smuggle the gold out of airport area. Sharath, Team Lead; Chandrakumar, Team Lead; Jithin N.C, Team Lead; Jithin P.R, Ramp Agent (No retraction), Baburaj K. employee (No retraction), are all the employees of BWFS who were either guided by P.A. Noushad himself or through Shinoy K. Mohandas, were alleged to have been involved in facilitating gold smuggling.
21.1. We find that Sharath.M.V had replied to the show-cause notice vide his reply dated 22.01.2016 denying all the allegations and also on 26.10.2016 advocate Mrs. Laya Mary Joseph appeared before the Commissioner and hence, the claim of the appellant having not given any opportunity is nullified. We also find that their retraction was filed after two months which was rejected by the Revenue. Sharath.M.V in his statement dated 08.06.2015 has stated that he was a Team Leader and involved in loading and unloading cargo baggage from flight. He also stated that he was on duty of Spice Jet flight and Shinoy had given him and Chandra Kumar M one gold bar each covered in a black tape, which was carried to the bathroom and concealed in their shoes and entered to the International Terminal departure through the staff gate. On exit, they entered the Hyundai i10 car which belongs to Shinoy K. Mohandas and placed it in the car. He also admits that he Page 60 of 66 C/20312 AND OTHER 32 APPEALS had carried 8 kgs of gold, for which Rs.2,00,000/- remuneration was given which was later retracted after two months. We find that 8 kgs of gold (Rs.1,88,40,000/-) which was confiscated in the ferry bus is admitted by Sharath M.V in his statement to have facilitated in smuggling the gold in lieu of remuneration. Misusing his access to sensitive areas of the airport for illegal gains which is retracted only after two months without any basis cannot be justified in view of the fact that gold was confiscated. None appeared for the appellant and as seen from the grounds of appeal, there are no evidences that are placed on record to counter the allegations by the Revenue. In view of the above, we uphold the penalty of Rs.5,00,000/- (Rupees Five Lakh Only) under Section 112 (a) & (b) of the Customs Act, 1962.
21.2. Similarly, in the case of Chandra Kumar M based on the statements and the dairy seized from his residence on 10.06.2015, it is seen that remuneration received from gold smuggling was noted in it. Since, he was arrested on 09.06.2015 and produced before the Additional Chief Judicial Magistrate (Economic Offence) and remanded to judicial custody after the medical examination, which does not prove any injury on the individual, any statement with regard to correction cannot be justified. Chandra Kumar M in his statement dated 08.06.2015 had admitted to have involved in gold smuggling and along with Sharath.M.V carried the gold out of the airport to be placed in the Hyundai i10 car which belongs to Shinoy C. Mohandas outside the airport. None appeared for Chandra Kumar M and based on the evidences placed on record by the Revenue, there is no counter evidences placed by the appellant in his grounds of appeal. However, taking into consideration that both Sharath.M.V and Chandra Kumar.M were involved in facilitating smuggling of 8 kgs of gold, the penalty imposed on him is reduced from Rs.8,00,0000/- to Rs.5,00,000/- (Rupees Five Lakh Only).
Page 61 of 66C/20312 AND OTHER 32 APPEALS
22. With regard to Hamza Valappil (Gold Agent), the allegations are that he purchased the smuggled gold and based on previous instances has been penalized for dealing with the smuggled gold. We find that the appellant Hamza Valappil is a gold trader and deals with buying and selling of gold. However, except for the statement of P. A. Noushad, we do not find any evidence of purchase of smuggled gold brought in by the Revenue. Hence, the penalty imposed on him cannot be justified. Similarly with regard to Shinuraj. T, Aneer Ashraf Nagarmbil, Vipin Md (Carrier), Shamal, Rafeek M M, Jithin NC, Jithin P R (BWFS employee) all are also alleged as carriers/ facilitators without any evidences to corroborate the same. None appeared for the above appellants. Except for their statements nothing is on record to prove or corroborate their involvement, hence, we do not find any cogent reasons to justify imposition of penalty on them.
23. Baburaj K. Hassan, another employee of BWFS in his statement dated 12.06.2015 has clearly admitted that he introduced Shinoy. K.M to Fazil, P.A. Noushad and Yasir and that Fazil was his classmate in school and has given a detailed analysis how the smuggling of gold was undertaken. Having not retracted his statement, the appellant cannot allege that he was forced to give a statement and we find that the appellant has not retracted his statement. Having admitted to the offence in his statement to the offence corroborated by others who have not filed an appeal before us stands justified. Accordingly, the allegations of being a facilitator is upheld; however, taking into consideration the fact that only 13 kgs gold was confiscated the penalty is reduced from Rs.30,00,000/- to Rs.10,00,000/- (Rupees Ten Lakh Only). The confiscation of the Maruti Swift car is also upheld along with the redemption fine.
Page 62 of 66C/20312 AND OTHER 32 APPEALS
24. Abdul Latheef (BWFS Employee) as per the revenue Siraj T K in his statements stated about the involvement of Abdul Latheef and Abdul himself in his statement admitted his role in gold smuggling which corroborates with the statements of others. It has been admitted by Siraj T.K., who has been identified as the main coordinator and recruiter of personnel inside the airport for the smuggling syndicate for this channel. From the CDRs it is seen that Siraj T K (9895698251) had regular contacts with Saifudheen M S (9946539593); Saifudheen also had regular contacts with Faisal P A (9526986843). As evidenced by his own statement and the statements of other co-accused, Abdul Latheef has smuggled gold from the ferry bus to outside the airport in lieu of remuneration and misused his access to sensitive areas of the airport for illegal gains taken active part by collecting, carrying and concealing and smuggling the gold.
24.1. None appeared for the said Appellant. As per the records the appellant that the entire allegations against the appellant are made on the statements which was recorded under threat of arrest and humiliation. Relying on the decision of the Hon'ble High Court of Madras in the case of CC, Chennai Vs. Sainil Abideen Neelam 2014 (300) ELT 342 submitted that the statements cannot be considered as acceptable evidence. Since, the call data records and the statements given by Siraj and Abdul himself admit smuggling of gold and the revenue having confiscated the 13 kgs of gold and none of these having been disputed as is held by the Hon'ble High Court in the case of Rajendra Prakash Pawar Versus Commissioner of Customs, Mangalore (Supra) we uphold the allegations against Abdul Latheef and accordingly the penalty imposed on him is reduced from Rs.9,00,000/- to Rs.5,00,000/- (Rupees Five Lakh Only).
Page 63 of 66C/20312 AND OTHER 32 APPEALS
25. With regard to Ismail the revenue submits that the evidence against Ismail was brought out in the statement of T.K. Siraj, K.K. Ansal corroborated by Ismail's own statement. Ismail had in his statement under Section 108 of Customs Act 1962, admitted that he had accepted 1 kg of gold from K.K. Ansal. Further it is stated that as per the records Ismail travelled to Dubai about 15 times during the end of 2013 to early 2015 and back. It is submitted that evidences gathered during the investigation showed that during the same period Noushad had started smuggling gold through Cochin Airport. It is further stated that the frequent travels undertaken by Ismail to Dubai and payments for the same, were made by P.A. Noushad and his brother P.A. Faisal arranged tickets for carrier passengers to bring gold to India. From the CDRs it is stated that Ismail (Mob No.9497028650) had frequent contacts with Noushad P A in his Mobile number 9605483375 which used by Noushad but found to be in a fictitious name and there were no calls from the number 9605483375 after the search of Noushad's residence on 25.5.15. Further it is stated that P.P. Ismail had complained about ill treatment to Hon'ble Additional Chief Judicial Magistrate (Economic Offence) when he was produced before the authority after his arrest, and FIR was registered by the police authorities, who after enquiring into the same, found that the allegations were false and referred the matter for closure.
25.1. None appeared however from their appeal records it is seen that the appellant submitted that the statements of Ansal Siraj and Lal cannot be accepted as there is no other material evidence other than statements. Based on the statement that the appellant was travelling from gulf countries from April 2013 to April 2015 is known from the details as provided at Para 15.1 above and since these travel details have not been disputed rejection of cross-examination of the co-accused is justified.
Page 64 of 66C/20312 AND OTHER 32 APPEALS Nothing was recovered from the residence or his custody, hence allegation of 38kgs of gold smuggling and penalty cannot be sustained. We find that the travel details placed on record has not been disputed and the tickets being booked by the persons belonging to the syndicate is also not challenged. The statement given by Ismail is not retracted and therefore the allegations against him are sustained. However, taking into consideration only 13 kgs of gold were confiscated the penalty is reduced from Rs.1,00,00,000/- to Rs.25,00,000/- (Rupees Twenty-Five Lakh Only).
26. With regard to Nibin K. Basheer the Commissioner (No retraction) in the impugned order states that Jabin Basheer accepted that he smuggled gold and implicated Nibin Basheer which was corroborated by the statements of Basheer, Nibin himself, Shams and Rasuna. According to the revenue he used to transport gold from the airport to his house at Muvattupuzha and also received remuneration from Noushad on many occasions. Jabin Basheer was under COFEPOSA detention and the Hon'ble HC had passed an order affirming the detention order and citing sufficiency of proof for detention. Jabin filed a WP in Kerala HC against the OIO both on merits and against the revenue alleging the principles of natural justice was denied. In view of above Court decisions combined with non-retraction, the statement of Jabin stands validated. None appeared for the Appellant but in the grounds of appeal submits that the entire allegations against the appellant are made on the statements which were recorded under threat of arrest and humiliation. There being no retraction of his statement where he admitted that Jabin K. Basheer his brother was the immigration officer and in his detailed statement dated 04.07.2015 explained in detail as to how using the services of his brother he got involved in smuggling of gold and this statement was not Page 65 of 66 C/20312 AND OTHER 32 APPEALS retracted. It is on record that Jabin K. Basheer his brother was detained under COFEPOSA Act and also has not appealed against this order and the Hon'ble High Court has rejected his appeal upholding the impugned order. We find that role of Nibin K. Basheer in smuggling of gold as held by the Commissioner is to be sustained. Accordingly, we uphold the penalty of Rs.25,00,000/- and the confiscation of the vehicle along with the redemption fine.
27. In view of the above discussions and observations, Customs Appeal Nos.20312, 20555; 20599; 20600; 20601; 20629; 20631; 20632; 20639; 20641; 20652; 20660; 20721; 21133; 21458/2017 are allowed; Customs Appeal Nos. 20630; 20633; 20634; 20640; 20647; 20648; 20649; 20650; 20651; 20657; 20658; 20659; 20661; 20701; 21130; 21596/2017 are disposed of; and Customs Appeal Nos. 20628; 20748/2017 are rejected.
(Order was pronounced in Open Court on 06.02.2026.) (D.M. MISRA) MEMBER (JUDICIAL) (R BHAGYA DEVI) MEMBER (TECHNICAL) rv Page 66 of 66