Madras High Court
M.Shajakhan vs The Commissioner Of Customs ... on 10 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD).Nos.8711 of 2021 and etc batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 26.04.2022
Pronounced on 10.08.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD).Nos.8711, 8713, 8716, 8717, 8719, 8720, 8721, 9312, 9313,
9314, 9320 and 9322 of 2021
and
W.M.P.(MD).Nos.6574, 6575, 6576, 6577, 6578, 6579, 6580, 7036,
7037, 7038, 7043 and 7046 of 2021
W.P.(MD).No.8711 of 2021:
M.Shajakhan ... Petitioner
Vs
1. The Commissioner of Customs (Preventive),
No.1 William Road, Cantonment,
Tiruchirappalli – 620 001.
2. The Joint Commissioner of Customs,
No.1 Williams Road, Cantonment,
Tiruchirappalli – 620 001.
3. The Joint Director,
Office of the Additional Director General,
Directorate of Revenue Intelligence,
Chennai Zonal Unit,
No.27,G.N.Chetty Road,
T.Nagar, Chennai – 600 017 ... Respondents
https://www.mhc.tn.gov.in/judis
1/43
W.P.(MD).Nos.8711 of 2021 and etc batch
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus to forbear the second respondent from
enquiry/adjudication proceedings in F.No.GEN/ADJ/JC/352/2020-ADJN
22.02.2021 without giving reasonable opportunity of cross-examination
of the mahazar witnesses to the mahazar dated 05.11.2019 & 07.11.2019
drawn by the third respondent at Tiruchirppalli Airport in connection
with cases booked by the third respondent in
F.No.DRI/TRY/VIII/48/ENQ-01/INT-01/2019-TRY dated 29.06.2020.
For Petitioners:
In W.P.(MD).Nos.8711, : Mr.B.Satish Sundar
8713, 8716, 8717, 8719,
8720 & 8721 of 2021
In W.P.(MD).Nos.9312, : Mr.A.Ganesh
9313, 9314, 9320 and
9322 of 2021
For Respondents:
In W.P.(MD).Nos.8711, : Mr.R.Aravindan
8713, 8716, 8717, 8719, Senior Standing Counsel
8720 & 8721 of 2021
In W.P.(MD).Nos.9312, : Mr.B.Vijay Karthikeyan
9313, 9314, 9320 and Senior Standing Counsel
9322 of 2021
https://www.mhc.tn.gov.in/judis
2/43
W.P.(MD).Nos.8711 of 2021 and etc batch
COMMON ORDER
The petitioners in W.P(MD).Nos.8711, 8713, 8717, 8719, 8720 & 8721 of 2021 have filed these writ petitions for issuance of a Writ of Mandamus to forbear the second respondent from enquiry/adjudication proceedings in F.No.GEN/ADJ/JC/352/2020-ADJN dated 22.02.2021 without giving reasonable opportunity of cross-examination of the mahazar witnesses to the mahazar dated 05.11.2019 and 07.11.2019 drawn by the third respondent at Thiruchirappalli Airport in connection with cases booked by the third respondent in F.No.DRI/TRY/VIII/48/ENQ-01/INT-01/2019-TRY dated 29.06.2020, within stipulated time.
2. The petitioner in W.P(MD).No. 8716 of 2021 has filed this writ petition for issuance of a Writ of Mandamus to forbear the second respondent from enquiry/adjudication proceedings in F.No.GEN/ADJ/JC/352/2020-ADJN dated 22.02.2021 without giving reasonable opportunity of cross-examination of the mahazar witnesses to the mahazar dated 05.11.2019 and 06.11.2019 drawn by the third respondent at Thiruchirappalli Airport in connection with cases booked by the third respondent in https://www.mhc.tn.gov.in/judis 3/43 W.P.(MD).Nos.8711 of 2021 and etc batch F.No.DRI/TRY/VIII/48/ENQ-01/INT-01/2019-TRY dated 29.06.2020, within stipulated time.
3. The petitioners00 in W.P.(MD).Nos.9312, 9313, 9314, 9320 and 9322 have filed these writ petitions for an almost identical prayer for a writ of Mandamus to forbear the second respondent from proceeding with the enquiry/adjudication proceedings in F.NO.GEN/ADJ/JC/352/2020 - ADJN without giving reasonable opportunity to cross-examine the Mahazar witnesses in the Mahazar dated 05.11.2019 and 06.11.2019 drawn by the office of the third respondent at Tiruchirappalli Airport in Connection with cases booked by the said respondent in F.No. DRI/TRY/VIII/48/ENQ-01/ INT-01/2019- TRY.
4. The third respondent/The Joint Director, Office of the Additional Director General, Directorate of Revenue Intelligence has issued Show Cause Notice dated 29.06.2020 bearing reference F.No.DRI/TRY/VIII/48/Enq-01/Int-01/2019 – TRY to the petitioners and others (herein after referred to as Act) to the show cause as to why the goods imported by them allegedly attempted to be cleared without https://www.mhc.tn.gov.in/judis 4/43 W.P.(MD).Nos.8711 of 2021 and etc batch payment of customs duty and necessary declaration under Section 77 of the Act should not be confiscated under under Section 124 of the Customs Act, 1962.
5. It is the specific case of the petitioners that the attempt of the respondent to impose penalty and the fine on these petitioners without permitting the petitioners to cross examine the Mahazar witnesses and the officers of the DRI was liable to be interfered.
6. The details of imports made by the respective petitioners in the show cause notices are as under:-
https://www.mhc.tn.gov.in/judis 5/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 79 9312 of FAISAL Gold 190 7,25,990 Admitted that he was acting as a 2021 RAHMAN CRUDE Carrier of the said gold for monitory CHAIN consideration, did not have any legal (2 Nos.) /valid/permit/license/documents for import of the said gold, attempted to clear the same by concealment, Gold 828 31,63,788 without declaration, not indicated recovered the value of the goods brought by from Gold him with an intention to evade paste in 4 customs duty, thus involved in pockets attempt to outright smuggling of the (1050 grams) foreign origin gold into India and handing over.
Total Gold 1018 38,89,778 (ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally Apple I- 5 nos 3,29,700 weighing 1018 grams valued at Rs. Phone 11 38,89,778/-, along with other goods Pro Max 64 valued at Rs.6,89,340/- totally GB valued at Rs.45,79,118/- which are liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Apple I- 6 nos 3,59,640 Customs Act, 1962 inasmcuh as the Phone 11 impugned goods have been Pro 64 GB smuggled into India by concealment in violation of para2.26 of Foreign Other Goods 6,89,340 Trade Policy, 2015-2020 read with Total Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
Grand Total 45,79,118 (ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri FAISAL RAHMAN appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 6/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 83 9313 of FAISHATH Gold 190 7,25,990 Admitted that he was acting as a 2021 RAHMAN CRUDE Carrier of the said gold for monitory CHAIN consideration, did not have any (2 Nos.) legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by Gold 828 31,63,788 concealment, without declaration, recovered not indicated the value of the goods from Gold brought by him with an intention to paste in 4 evade customs duty, thus involved in packets attempt to outright smuggling of the (1040 grams) foreign origin gold into India and handing over.
Total Gold 1018 38,89,778 (ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally I-Phone 11 11 nos 7,51,740 weighing 1018 grams valued at Rs.
Pro 256 GB 38,89,778/-, along with other goods valued at Rs.7,51,740/- totally Other Goods 7,51,740 valued at Rs.46,41,518/- which are Total liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the Grand Total 46,41,518 impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri FAISHATH RAHMAN appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 7/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 76 9314 of IMRAN Gold 190 7,25,990 Admitted that he was acting as a 2021 KHAN CRUDE Carrier of the said gold for monitory CHAIN (2 consideration, did not have any Nos.) legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by Gold 842 32,17,282 concealment, without declaration, recovered not indicated the value of the goods from Gold brought by him with an intention to paste in 4 evade customs duty, thus involved in pockets attempt to outright smuggling of the (1060 grams) foreign origin gold into India and handing over.
Total Gold 1032 39,43,272 (ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally I-Phone 11 11 nos 6,59,340 weighing 1032 grams valued at Rs.
Pro (64 GB) 39,43,272/-, along with other goods valued at Rs.6,59,340/- totally Other Goods 6,59,340 valued at Rs.46,02,612/- which are Total liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the Grand Total 46,02,612 impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri IMRAN KHAN appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 8/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 68 9320 of HAJI Gold 190 7,25,990 Admitted that he was acting as a 2021 AHAMED CRUDE Carrier of the said gold for monitory CHAIN consideration, did not have any (2 Nos.) legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by Gold 822 31,40,862 concealment, without declaration, recovered not indicated the value of the goods from Gold brought by him with an intention to paste in 4 evade customs duty, thus involved in pockets attempt to outright smuggling of the (1032 grams) foreign origin gold into India and handing over.
Total Gold 1012 38,66,852 (ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally APPLE I- 6 nos 4,10,040 weighing 1012 grams valued at Rs.
Phone 11 38,66,852/-, along with other goods Pro (256 valued at Rs.8,02,440/- totally GB) valued at Rs.46,69,292/- which are liable for confiscation under Section Apple I- 6 nos 3,92,400 111(d), 111(i), 111(l) and 111(m) of Phone 11 pro Customs Act, 1962 inasmcuh as the (128 GB) impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Other Goods 8,02,440 Trade Policy, 2015-2020 read with Total Foreign Trade (Exemption from application of Rules in Certain Grand Total 46,69,292 cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri HAJI AHAMED appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 9/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 80 9322 of MOHAME Gold 190 7,25,990 Admitted that he was acting as a 2021 D YASAR CRUDE Carrier of the said gold for monitory CHAIN consideration, did not have any (2 Nos.) legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by Gold 803 30,68,263 concealment, without declaration, recovered not indicated the value of the goods from Gold brought by him with an intention to paste in 4 evade customs duty, thus involved in pockets attempt to outright smuggling of the (1040 grams) foreign origin gold into India and handing over.
Total Gold 993 37,94,253 (ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally APPLE I- 11 nos 7,51,740 weighing 993 grams valued at Rs.
Phone 11 37,94,253/-, along with other goods Pro (256 valued at Rs.7,51,740/- totally GB) valued at Rs.45,45,993/- which are liable for confiscation under Section Other Goods 7,51,740 111(d), 111(i), 111(l) and 111(m) of Total Customs Act, 1962 inasmcuh as the impugned goods have been smuggled into India by concealment Grand Total 45,45,993 in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri MOHAMED YASAR appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
Admitted that he was acting as a Carrier of the said gold for monitory consideration, did not have any legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by concealment, without declaration, not indicated the value of the goods https://www.mhc.tn.gov.in/judis 10/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 111 8713 of Niyas Syed Gold Crude 200g Rs 7,64,200 Admitted that he was acting as a 2021 Chain Carrier of the said gold for monitory (1 No.) consideration, did not have any legal/valid/permit/license/documents for import of the said gold, Total Gold 200g Rs.7,64,200 attempted to clear the same by concealment, without declaration, Apple 91 Nos Rs.8,13,540 not indicated the value of the goods Airpod brought by him with an intention to evade customs duty, thus involved in attempt to outright smuggling of the Canon DSLR 3 Nos Rs.3,51,967 foreign origin gold into India and CameraEOS handing over.
5Ds
(ii) Accordingly, the officers seized the impugned foreign origin crude Zhuyin- 12 Nos Rs.57,456 gold as detailed in Col.3 totally Smooth 4-3 weighing 200 grams valued at Rs.
axis 7,64,200/-, electronic goods valued Smartphone at Rs.12,22,963/- total value of the Stabilizer(sm goods art phone Rs. 19,87,163/- which are liable for stand) confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the Total Other 12,22,963 impugned goods have been Goods smuggled into India by concealment in violation of para2.26 of Foreign Grand Total 19,87,163 Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Aman Arsath Khan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 11/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 88 8716 of Meera Crude Gold 200g Rs.7,64,200 Admitted that he was acting as a 2021 Chain Carrier of the said gold for monitory consideration, did not have any legal/valid/permit/license/documents Total Gold 200g Rs.7,64,200 for import of the said gold, attempted to clear the same by Gudang 2400 Rs.11,520 concealment, without declaration, garam sticks not indicated the value of the goods cigarette brought by him with an intention to evade customs duty, thus involved in attempt to outright smuggling of the I-phone 11 4-Nos Rs.2,63,760 foreign origin gold into India and Pro handing over.
Max(64GB)
(ii) Accordingly, the officers seized the impugned foreign origin crude I-phone 11 2 Nos Rs.1,36,680 gold as detailed in Col.3 totally Pro weighing 200 grams valued at Rs.
Max(256GB 7,64,200/-, electronic goods & other ) goods valued at Rs.5,54,037/- total value of the goods Rs. 13,18,237/- which are liable for Apple watch 2 Nos 49,480 confiscation under Section 111(d), Series 5 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the Iphone 5 Nos 92,997 impugned goods have been unboxed smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Total 13,18,237 Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Aman Arsath Khan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 12/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 109 8717 of Mohamed Crude Gold 200g Rs7,64,200 Admitted that he was acting as a 2021 Saleem Chain Carrier of the said gold for monitory consideration, did not have any legal/valid/permit/license/documents for import of the said gold, Canon DSLR 3 Nos Rs.3,51,966 attempted to clear the same by CameraEOS concealment, without declaration, 5Ds not indicated the value of the goods brought by him with an intention to Apple 109 Nos Rs.9,74,460 evade customs duty, thus involved in Airpods attempt to outright smuggling of the foreign origin gold into India and handing over.
Zhuyin- 2 Nos Rs.9,57,
(ii) Accordingly, the officers seized Smooth 4-3 the impugned foreign origin crude axis gold as detailed in Col.3 totally Smartphone weighing 200 grams valued at Stabilizer(sm Rs7,64,200/-, along electronic goods artphone valued at Rs13,50,366/- total value stand) of the goods Rs. 21,14,566/- which are liable for Zhuyin-Crne 3 Nos Rs.14,364 confiscation under Section 111(d), 2-3 axis 111(i), 111(l) and 111(m) of CameraStabi Customs Act, 1962 inasmcuh as the lizee impugned goods have been (Camera smuggled into India by concealment stand) in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from Total 21,14,566 application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Aman Arsath Khan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 13/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.)
81. 8719 of Aman Crude Gold 199 gm Rs7,60,379 Admitted that he was acting as a 2021 Arsath Khan Chain(1 Carrier of the said gold for monitory Nos) consideration, did not have any legal/valid/permit/license/documents for import of the said gold, Silver (in 10,000 Rs.4,91,000 attempted to clear the same by Grain Form) gm concealment, without declaration, not indicated the value of the goods Iphone-11 8Nos 5,46,720 brought by him with an intention to pro(256GB) evade customs duty, thus involved in attempt to outright smuggling of the foreign origin gold into India and Cigarette 3120 14,976 handing over.
sticks
(ii) Accordingly, the officers seized (13x24) the impugned foreign origin crude gold as detailed in Col.3 totally Apple Watch 3Nos 73,620 weighing 199 grams valued at Rs. Series 5 7,60,379/-, along with silver valued at Rs4,91,000./- electronic goods valued at Rs.10,46,197/- total value I-Phone 11 2 Nos 1,31,880 of the goods pro Rs. 22,97,576/- which are liable for Max(64GB) confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Total 20,18,575 Customs Act, 1962 inasmcuh as the impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Aman Arsath Khan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 14/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 11 8711 of M.Shajakha Crude Gold 201 g Rs.7,68,021 Admitted that he was acting as a 2021 n Chain 1 no Carrier of the said gold for monitory consideration, did not have any legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by concealment, without declaration, not indicated the value of the goods brought by him with an intention to Total Rs.7,68,021 evade customs duty, thus involved in attempt to outright smuggling of the foreign origin gold into India and handing over.
(ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally weighing 201 grams valued at Rs.
7,68,021/-, which are liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri M. ShajaKhan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 15/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 16 8720 of M.Niza Crude Gold 198g Rs 7,56,558 Admitted that he was acting as a 2021 mudeen Chain(24 Carrier of the said gold for monitory Carata) consideration, did not have any legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by concealment, without declaration, not indicated the value of the goods Total Rs 7,56,558 brought by him with an intention to evade customs duty, thus involved in attempt to outright smuggling of the foreign origin gold into India and handing over.
(ii) Accordingly, the officers seized the impugned foreign origin crude gold as detailed in Col.3 totally weighing 199 grams valued at Rs.
7,60,379/-, along with silver valued at Rs4,91,000./- electronic goods valued at Rs.10,46,197/- total value of the goods Rs. 22,97,576/- which are liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Aman Arsath Khan appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 16/43 W.P.(MD).Nos.8711 of 2021 and etc batch Sl.No. W.P.Nos. Name of the Details of the goods seized from the Reasoning based on the detailed in Passengers passengers and value thereof investigation conducted, SCN /Shri/Smt statements legal provisions as Description Quantity Value discussed above of goods (in grm) (Rs.) 75 8721 of Zikafudeen Crude Gold 200g 7,64,200 Admitted that he was acting as a 2021 Mohamed Chains Carrier of the said gold for monitory consideration, did not have any legal/valid/permit/license/documents for import of the said gold, attempted to clear the same by Silver(in 10 pack 4,91,000 concealment, without declaration, form of not indicated the value of the goods grain) brought by him with an intention to evade customs duty, thus involved in Gudang 240 11,520 attempt to outright smuggling of the Cigarettes (10x24) foreign origin gold into India and handing over.
(ii) Accordingly, the officers seized Apple Watch 2 Nos 49,080 the impugned foreign origin crude Series 5 gold as detailed in Col.3 totally weighing 200 grams valued at Rs.
I-phone 8 Nos 5,46,720 7,64,200/-, along with silver valued pro(256 GB) at Rs4,91,000./- electronics and other goods valued at Rs. 7,39,200/-
total value of the goods Total 19,94,400 Rs.19,94,400/- which are liable for confiscation under Section 111(d), 111(i), 111(l) and 111(m) of Customs Act, 1962 inasmcuh as the impugned goods have been smuggled into India by concealment in violation of para2.26 of Foreign Trade Policy, 2015-2020 read with Foreign Trade (Exemption from application of Rules in Certain cases) Amendment Order, 2017.
(ii) By the acts of omissions and commissions, the aforesaid person mentioned in col.(2) Shri Zikafudeen appear to have rendered the goods detailed in col (3) liable for confiscation under the provisions of the Customs Act, 1962 and hence liable for penal action in terms of Section 112 of Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 17/43 W.P.(MD).Nos.8711 of 2021 and etc batch
7. The petitioners had returned from Dubai, Sharjah and Singapore to Trichy in AK29 (Air Asia), IX612 (Air India Express), IX614 (Air India Express) and TR566 (Scoot Tiger Airlines) flight on 05.11.2019.
About 132 passengers from these flights were detained on the ground that many had attempted to pass through the Green Channel without declaring the goods and that were carrying gold and other articleswith an intention to evade customs duty payable by them. The goods that were seized from their possession are silver, saffron, electronic items, gold ornaments, gold chains, which were hidden in person including the rectum.
8. It is the case of the petitioners that after these petitioners had disembarked the flights on 05.11.2019 and even before they make necessary declaration, these petitioners were detained and statements were recorded from them along with other passengers on the suspicion that they were carrying goods with an intention to evade payment of customs duty.
9. It is submitted that the seizure effected itself was bad in law as the officers from of the Directorate of Revenue Intelligence assumed that https://www.mhc.tn.gov.in/judis 18/43 W.P.(MD).Nos.8711 of 2021 and etc batch the all the petitioners and the passengers who embarked from different flights coming from different destination were attempting to evade customs duty.
10. It is submitted that the officers recorded statements which are signed by stock witnesses. It is further submitted that in response to the personal hearing notice dated 25.11.2020 fixing the personal hearing on 02.12.2020, these petitioners replied and requested for cross-examination of the witnesses which has been denied as the proceeding was conducted were in gross violation of principles of natural justice, fair play and reasonable opportunity was being denied to these petitioner to defend themselves.
11. It is further submitted that without cross-examination of the witnesses who have affixed their signature as Mahazar Witness, there will be a manifest in violation of Principles of Natural Justice.
12. It is the case of the petitioners that they have requested the 2 nd respondent to permit cross-examination of the Mahazar witnesses, namely Ravichandran and Senthil Kumar. The petitioners also wanted to https://www.mhc.tn.gov.in/judis 19/43 W.P.(MD).Nos.8711 of 2021 and etc batch obtain CCTV footage from the Airport Authorities of India to show that there was no attempt by any of the petitioners to evade payment of customs duty.
13. It is submitted that if the petitioners were allowed to cross-
examine the said two witnesses and view the footage, they would be able to establish that there was no attempt to evade payment of customs duty on the imports made by them.
14. The learned counsel for the petitioners have drawn attention to the order of this Court in the case of one of the persons, who was also detained on 05.11.2019 along with the petitioner, in the case of Mohammed Haroon Vs. Additional Director General, Directorate of Revenue Intelligence, Chennai reported in 2021 (378) E.L.T. 754 (Mad).
15. The learned counsel for the petitioners have drawn attention to the similar defense taken in the aforesaid case and referred to paragraph 5 which reads as under:-
https://www.mhc.tn.gov.in/judis 20/43 W.P.(MD).Nos.8711 of 2021 and etc batch “5.The allegations made by the writ petitioners have been strongly controverted by the Directorate of Revenue Intelligence. They received specific intelligence that passengers arriving at Trichy from Kuala Lumpur, Dubai, Sharjah and Singapore through four particular flights at around the midnight on 05.11.2019 would be bringing huge quantities of 24ct gold in the form of crude chain and paste and attempt to smuggle the same without payment of applicable customs duty. The information turned out to be well founded. Among the 640 passengers, 128 were detained and huge quantity of gold, silver and electronic goods were seized. Gold was smuggled either by concealing in the form of paste in the rectum or in the form of crude chains. From the petitioners, two crude gold chains weighing 200 gms each and electronic goods worth more than Rs.40.00 lacs were seized. The petitioners admitted in their voluntary statements that they were not the owners of the goods and that they were to be handed over to third parties who were waiting outside the airport premises. The petitioners had offered their services for monetary consideration. The specific stand of the DRI is that the petitioners were intercepted when they were about to exit the green channel. The allegations regarding ill-treatment and coercion havebeen denied. It is further stated that the complaint lodged by the petitioners before the National Human Rights Commission was closed. Likewise, the criminal complaint lodged before the local police against the DRI officials was also closed. The department had already initiated adjudication proceedings. The petitioners will be given full opportunity to take part and contest the allegations made against them. When the proceedings are pending, the petitioners have prematurely moved this Court for relief. The writ petitions are clearly not maintainable.” https://www.mhc.tn.gov.in/judis 21/43 W.P.(MD).Nos.8711 of 2021 and etc batch
16. The learned counsel for the petitioners submits that after examining the issue at length, the learned single Judge of this Court has observed as under:-
''12. The petitioners could have established their defence only by producing the CCTV footage. They have been denied access to this vital piece of evidence. The best evidence was very much available and it was allowed to vanish. The airport authority is a limb of the State. DRI cannot wash away its hands by taking the plea that they have not installed the CCTV and that it is not in their control. When a huge smuggling attempt was busted and when two of the arrested from whom recoveries were made wrote to the Additional Director General, DRI, Chennai that if he verifies the contents of the CCTV footage, their stand will be vindicated, then it was the bounden duty of DRI to have secured the CCTV footage. Since this was not done, I have to necessarily draw adverse inference against them. The Supreme Court in the decision reported in (2015) 7 SCC 178 (Tomaso Bruno and another vs. State of Uttar Pradesh) observed that as per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him.” https://www.mhc.tn.gov.in/judis 22/43 W.P.(MD).Nos.8711 of 2021 and etc batch
17. Incidentally, the learned counsel for the petitioners submits that one passenger detained who had accepted to proceed with the proceedings, had also challenged the Order-in-Original in W.P.(MD) Nos.11379 to 11382 of 2021 and that the writ petitions were allowed on 09.10.2021 I after hearing. It is submitted that the Court has remitted the case back to the respondents to pass a fresh order de novo.
18. The learned counsel for the petitioners further submits that the so called voluntary statement given by them on the date of seizure, were obtained under threat and coercion therefore, they are not binding on the petitioners.
19. It is further submitted that the statements were drawn on 05.11.2019 from 22 hours (10 PM) onwards up to 0015 hours (12.15 AM) on 07.11.2019 were in the presence of above 26 officers from DRI with the presence of not a single officer from the Custom Department of Trichy Airport. It is submitted the Mahazar witnesses have merely affixed their signature in token of having witnessed the recording of statement of the these petitioners in the Mahazar.
https://www.mhc.tn.gov.in/judis 23/43 W.P.(MD).Nos.8711 of 2021 and etc batch
20. Apart from the above, the signatures of three assayers were obtained for certifying the value, purity of gold and silver items recovered from the possession of some of the petitioners. It is further submitted that the decision of the Hon’ble Supreme Court in the case of Surjeet Singh Chhabra Vs. Union of India reported in 1997 (89) E.L.T. 646 (SC) was not applicable to the facts of the present case.
21. The learned counsel for the petitioners in W.P.(MD).Nos.9312, 9313, 9314, 9320 and 9322 of 2021 has also referred to the decisions relied by the learned counsel for the petitioners in W.P.(MD).Nos. 8711, 8713, 8716, 8717, 8719, 8720 and 8721 of 2021.
22. In all these writ petitions, the respondents have filed separate counter affidavits where identical defences have been taken. In the counter affidavit, the respondents have defended the proceedings primarily on the ground that the writ petitions are premature. That apart, it is submitted that no statements were recorded from the Mahazar witness who affixed their signature and therefore the question of cross-
examination of the Mahazar witnesses cannot be countenanced.
https://www.mhc.tn.gov.in/judis 24/43 W.P.(MD).Nos.8711 of 2021 and etc batch
23. It is further submitted that the petitioners have given a voluntary statement under Section 108 of the Act, which has also not been retracted so far. The learned counsel for the respondents in the respective Writ Petition in unison submit that no statement has been recorded from the Mahazar witnesses and therefore the request to cross-
examine the Mahazar witnesses is mis-conceived.
24. The learned counsel for the respondents finally submits that the communication dated 22.02.2021 rejecting the request for cross-
examination has also not been challenged and therefore, no mandamus can be issued.
25. Mr.R.Aravindan and Mr.B.Vijaykarthikeyan, learned senior standing counsel in these writ petitions further submit that these petitioners in their respective writ petitions have not questioned the Mahazar statement recorded between 05.11.2019 and 07.11.2019.
26. It is submitted that the legality of the Mahazar has not been questioned. It is further submitted that the statement were recorded from the respective writ petitioners under Section 108 of the Customs Act, https://www.mhc.tn.gov.in/judis 25/43 W.P.(MD).Nos.8711 of 2021 and etc batch 1962. They were also not resailed immediately. It is further submitted since none of the two Mahazar witnesses have given any statements, the question of cross-examination of Mahazar witnesses been does not arise.
27. The fact that officers of the customs from the Tiruchirappalli Air Port were not involved when Mahazars were drawn is of no consequence inasmuch as the officers of DRI are also officers of Customs and therefore on this count, the proceedings initiated cannot be interfered with.
28. It is further submitted that even the seizure effected has not been questioned in the manner know to law and therefore they cannot be any interference in the adjudication proceedings. He further submits that even if the statements given under Section 108 of the Customs Act, 1962 were resailed, they can be still relied upon. Therefore, on this count also, there is no merits in the present writ petition.
29. It is further submitted none of the petitioners have given a detailed reply to the Show cause notice to distance themselves from the liability. They have been merely seeking time for cross-examination https://www.mhc.tn.gov.in/judis 26/43 W.P.(MD).Nos.8711 of 2021 and etc batch Mahazar witnesses and officers of the DRI.
30. It is submitted that these writ petition has been filed merely to stall the adjudication of the proceedings initiated in the show cause notices issued to the petitioner.
31. As far as the decision of the learned Single Judge in the case of Mohammed Haroon Vs. Additional Director General, Directorate of Revenue Intelligence, Chennai in W.P.(MD).No.3917 and 3918 of 2020, dated 26.04.2021 is concerned and the observations recording adverse interference on the officers of the respondent is concerned, it is submitted that the said decision has been appealed before the Division Bench and has been stayed in W.A.(MD).Nos.1248 and 1249 of 2021, vide order dated 30.06.2022.
32. That apart, it is submitted that the video footage is not maintained by the Customs Department. On the other hand, it maintained by the Airport Authority of India and that video footage are meant only for security inside the airport and are erased by the Airport Authority of India periodically.
33. It is submitted that the Airport Authority of India does not https://www.mhc.tn.gov.in/judis 27/43 W.P.(MD).Nos.8711 of 2021 and etc batch interfere with the investigation carried out by the Customs Department.
Therefore, it is submitted that the decision of the learned Single Judge in Mohammed Haroon's case in 2021(37) 754 (referred to supra) cannot be relied upon.
34. It is submitted that the CCTV footage is also not available with the Airport Authority of India. That apart, it is submitted that under Section 65B(4) of the Indian Evidence Act, 1872 evidence can be given only by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) which shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
35. It is therefore submitted that Section 65B(4) of the Indian Evidence, Act, 1972 makes it clear that the Customs Department as also Directorate of Revenue Intelligence are not required to produce CCTV footage.
https://www.mhc.tn.gov.in/judis 28/43 W.P.(MD).Nos.8711 of 2021 and etc batch
36. Finally, it also submitted that the learned Single Judge in the case of Mohammed Haroon's case referred to supra cannot be relied upon in the light of the decision of the Division Bench of the Madras High Court in Commissioner of Customs Vs.Samynathan Murugesan 2009 (247) E.L.T.21 (Mad), if the manner of import is patently fraudulent, then, the adjudicating authority may direct absolute confiscation of the goods instead of exercising his discretion under Section 125 of the Act. The ratio of his decision would definitely apply in cases of those passengers who had carried gold in paste form by concealing it on their person. It is submitted The passengers who had hidden gold in their rectum cannot contend that they intended to declare before the customs authority and pay the applicable duty.
37. The learned counsel for the respondents have relied on the following three cases:
i. Sanjay Shah Vs The Commissioner of Customs in W.A.(MD).No.707 dated 25.11.2010;
ii. The Commissioner of Customs (Appeals-II) and others Vs Shri Vijayraj Surana in W.A.No.1763 of 2021 dated 17.08.2021; iii. M/s.JetUnipex and others Vs The Commissioner of Customs 2020 (373) E.L.T. https://www.mhc.tn.gov.in/judis 29/43 W.P.(MD).Nos.8711 of 2021 and etc batch 649 (Mad.).
38. That apart, the learned counsel for the respondents also referred to the Customs Manual, 2018, wherein, the entire procedure for clearance of passengers has been stated. It is submitted that the Green Channel or Walk Through Channel applies to passengers who have nothing to declare or when such passengers are carrying dutiable goods within the prescribed free allowance.
39. On the basis of their Oral Declaration/Declaration on Customs Baggage Declaration Form such passengers cross the Green Channel without any question being asked by the Customs and exit the airport after handing over the Customs Baggage Declaration Form to the Customs Officer/Sepoy at the exit.
40. On the other hand, the Red Channel is meant for passengers who have something to declare or are carrying goods in excess of the duty free allowance. The passenger hands over Customs Baggage Declaration Form to the officer on duty at this Channel.
https://www.mhc.tn.gov.in/judis 30/43 W.P.(MD).Nos.8711 of 2021 and etc batch
41. It is submitted that any passenger found walking through the Green Channel with dutiable/prohibited goods and are found mis declaring the quantity, description or value of dutiable goods at the “Red Channel” (the baggage will be examined where misdeclaration is suspected and they are liable to strict penal action including arrest/prosecution apart from seizure/confiscation of the offending goods depending upon gravity of violation detected.
42. That apart, it is submitted that most of these petitioners are having frequent visit to these countries and they have themselves admitted in their statement recorded under Section 108 of the Customs Act,192 that they were carrying goods for other person and therefore intention to evade customs duties is clear.
43. It is submitted that but for the alertness on part of the he officers of the DRI, who are Officers of the Customs Department it would not have been possible to seize the goods by detaining the petitioners and after recording statements under Section 108 of the Customs Act, 1962.
https://www.mhc.tn.gov.in/judis 31/43 W.P.(MD).Nos.8711 of 2021 and etc batch
44. By way of rejoinder, the learned counsel for the petitioner relied on the following circulars:
(a) Circular No.41/2000-Cus dated 12.05.2000 bearing reference F.No.520/63/99-Cus.VI;
(b) Circular No.9/2001-Cus dated 22.02.2001 bearing reference F.No.520/67/2000-Cus.VI;
(c) Circular No.16/2011-Cus dated 31.03.2011 bearing reference F.No.520/22/2010-Cus.VI;
(d)Circular No.90/2013-Cus(NT) dated 29.08.2013.
45. It is submitted that in terms of Circular No.90/2013-Cus(NT) dated 29.08.2013, Form 1 has been modified. The passengers are required to report to Customs Officer at the Red Channel counter in case they answer to any of the above question is 'yes'.
46. In other words, it is the case of the petitioners that even before the petitioners could approach the Red Channel, it was assumed that the petitioners intended to walk through Green Channel. Therefore, it is submitted that if the CCTV footage was made available to them they will able to call the bluff of the department.
https://www.mhc.tn.gov.in/judis 32/43 W.P.(MD).Nos.8711 of 2021 and etc batch
47. It is submitted that the presence of large posse of DRI officials at the Trichy Airport, seeking to detain 132 passengers who disembarked from different flights coming from Kualalampur, Dubai, Sharjah and Singapore clearly meant that there was a predetermination to conclude that all the passengers had intended to evade customs duties so as to attract the penal provisions under Section 112 (d), (l), (m), penalty under Section 112 and to confiscate the goods and important redemption fine under Section 124 and 12 of the Customs Act.
48. It is therefore submitted that unless the officers who have been signed the Mahazar and are allowed to be cross-examined, grave injustice will be caused.
49. I have considered the arguments advanced by the respective learned counsels for the petitioners Mr.Satish Sundar in W.P.(MD).No. 8711 of 2021 etc., batch and Mr.A.Ganesh for the respective petitioners in W.P.(MD).No.9312 of 2021, etc., batch.
50. I have also heard Mr.R.Aravindan, learned Senior Standing Counsel for the respondents in W.P.(MD).No.8711 of 2021 etc., batch https://www.mhc.tn.gov.in/judis 33/43 W.P.(MD).Nos.8711 of 2021 and etc batch and Mr.B.Vijayakarthikeyan , learned Senior Standing Counsel for the respondents in W.P.(MD).No.9312 of 2021, etc., batch.
51. I have also perused the affidavits filed in respect of the writ petitions and the counter filed by the respondents. I have also perused the case laws that were furnished/referred during the course of hearing by the respective counsels.
52. The facts are not in dispute that the petitioners along with the others were intercepted and statements were recorded from them under Section107 of the Customs Act, 1962. Almost, all the petitioners along with others who have been named in the Show Cause Notice, who have filed these writ petitions had earlier given statements admitting to the fact that they were carrying the goods for other persons and that they were frequent fliers engaged for the aforesaid purpose by others. The value of the goods carried and the manner in which they were hidden by them indicates that the petitioners prima facie had no intention to pay tax though were required to make appropriate declarations under Section 77 of the Customs Act, 1962 or under Baggage Rules, 2016 and under the Provisions of the Foreign Trade (Exemption from application of Rules in certain cases Amendment Order, 2017). https://www.mhc.tn.gov.in/judis 34/43 W.P.(MD).Nos.8711 of 2021 and etc batch
53. The petitioners were expected to make appropriate declaration by approaching the appropriate channel for clearance of the goods either on payment of customs duty or duty free. In this case, admittedly the petitioners were carrying goods beyond their duty free permissible allowances and therefore the action of the respondents cannot be challenged notwithstanding the fact that in certain cases orders have been passed allowing the writ petitions and thereby delaying the adjudication process.
54. These petitioners were not eligible for exemption from payment of Customs Duty either under any of the notification issued under Section 25 of the Customs Act, 1962 or under the Baggage Rules, 2016 or under the Provisions of the Foreign Trade (Exemption from application of Rules in certain cases Amendment Order, 2017) issued by the Ministry of Commerce (Director General of Foreign Trade).
55. It was therefore, incumbent on the part of the respective petitioners to who have filed declarations under the provisions of the Customs Baggage Declaration (Amendment) Regulations, 2016 and should given the particulars before even attempting to walk through the green channel.
https://www.mhc.tn.gov.in/judis 35/43 W.P.(MD).Nos.8711 of 2021 and etc batch
56. It is the case of the petitioners that they were not allowed to file the declarations and were detained as soon as they disembarked from the flight and were approaching the officers posted in the Air Port on the presumption that they were attempting to clear the goods without payment of appropriate Customs Duty and therefore according to them it is crucial that the CCTV Footage in the Air Port at the time of their interception should be given to them to establish their defense.
57. On the other hand, the statements given by the petitioner admitting to their role played in bringing the goods as established in the table above has not been resiled by them. The presence of CCTV in the Air Port is meant for a different purpose altogether though it may help the officials in screening the passengers where attempt made to smuggle the goods. CCTV footage is primarily maintained for security measures and not for quasi judicial proceedings.
58. Further, the use of CCTV in Air Port is of a recent origin. It was never employed by the Department to establish their case. In this case also there is also no attempt to establish the case against the respective petitioners based on the CCTV Footage. Further, the CCTV https://www.mhc.tn.gov.in/judis 36/43 W.P.(MD).Nos.8711 of 2021 and etc batch footages are not available at this distant point of time long after the incident.
59. The petitioners disembarked from the flight on the night of 05.11.2019. The request for the CCTV Footage, if any, should have been made by the petitioner to the Air Port Authority of India immediately, if the case of the petitioners is that the officers of the Customs Department had attempted to foist a false case against them. The fact that the statements were recorded on between 05.11.2019 and 07.11.2019 and the valuables were recovered from them and were seized, shows that the petitioners had enough opportunities at an earlier point of time to take immediate steps for not only to securing the CCTV Footage from the Air Port Authority of India, but also to have provisional release of the seized goods that were seized. No attempt has been made by the petitioners.
60. On the other hand, these petitioners have been sitting on the fence and have waited for the third respondent to issue Show Cause Notice for being adjudicated by the second respondent. It is at this stage a request has been made for the CCTV Footage and to cross-examine and to witnesses who have affixed the signature on the statements given by https://www.mhc.tn.gov.in/judis 37/43 W.P.(MD).Nos.8711 of 2021 and etc batch the respective petitioners in the Mahazar Statement drawn by the officers of the third respondent on three days i.e., 05.11.2019, 06.11.2019 and 07.11.2019.
61. Further, Mahazar is not a record of the statement of the attesting witness. It is intended to contain the minutes or record of what the investigating officer sees or witnesses. What he sees can be seen by the persons present with him as well. The purpose in collecting such signatures is to give assurance to all concerned that contemporaneous records prepared reflect who has seen. There is no dispute that the witnesses has affixed their signature. They are not expected to know the content of statement or the background of the case.
62. As attesting witnesses in this case the Mahazar witnesses are not even expected to know the contentment of the statement. They are merely required to affix their signature as having seen the persons signing statements. Further, the facts on record also indicates that no statements were recorded from the Mahazar witnesses and therefore question of summoning them for cross-examining them cannot be countenanced. If the petitioners desire that they can produce independent https://www.mhc.tn.gov.in/judis 38/43 W.P.(MD).Nos.8711 of 2021 and etc batch witnesses who traveled with them as their witnesses to establish their case.
63. Further, adjudication of any quasi judicial proceedings under the Customs Act, 1962 is to be based on the principles of preponderance of probability. Orders are to be passed based on the fact the preponderance of probability that the petitioners were carrying the valuable goods some of which were hidden in private part (rectum). It shows the prima facie attempt was to smuggle the goods without payment of Customs Duty by directly walking through the green channel.
In my view, therefore, there is no merits in the present writ petition. The attempt of these petitioners appears to be scuttle the proceedings initiated so far. It cannot be allowed.
64. As mentioned above, it is open for the petitioners to establish their case before the second respondent who is an independent officer of the Customs Department who can examine the case based on the records to come to a fair conclusion as to whether, the proposals in the Show Cause Notice dated 29.06.2020 issued by the third respondent has made out a case or not.
https://www.mhc.tn.gov.in/judis 39/43 W.P.(MD).Nos.8711 of 2021 and etc batch
65. I am not convinced that the petitioners have made a case for interference under Article 226 of the Constitution of India. Suffice, to state that petitioner should file a detailed reply, if any and participate in the adjudication mechanism prescribed under Customs Act, 1962 and thereafter take up the issue before the Appellate Forum in the hierarchy of the appellate authorities under the Customs Act, 1962, in case any adverse orders are passed against them.
66. Therefore, these Writ Petitions are liable to be dismissed.
Considering the fact that the Show Cause Notices have been issued to the petitioners during 2020-2021in request of alleged attempt made during November 2019, I direct the second respondent to complete the adjudicating proceedings within a period of six months from the date of receipt of a copy of this order. The petitioners are at liberty to file their reply/written submissions including production of any witness including fellow passengers as witnesses within a period of four months.
67. Reply of the petitioners written submissions and production of their witnesses shall be completed within a period of four months from the date of receipt of a copy of this order. https://www.mhc.tn.gov.in/judis 40/43 W.P.(MD).Nos.8711 of 2021 and etc batch
68. The petitioners shall co-operate with the second respondent or any other officer designated for adjudication of the Show Cause Notices issued by the third respondent under the Customs Act, 1962.
69. The second respondent or any other officer designated for adjudication of the Show Cause Notice shall thereafter proceed to pass orders on merits in accordance with law within a period of six months from the date of receipt of a copy of this order.
70. These Writ Petitions stand dismissed in terms of the above observations. No costs. Consequently, connected miscellaneous petitions are closed.
10.08.2022 Index: Yes/ No Internet: Yes/No Speaking/Non-speaking Order rgm/sn https://www.mhc.tn.gov.in/judis 41/43 W.P.(MD).Nos.8711 of 2021 and etc batch To
1. The Commissioner of Customs (Preventive), No.1 William Road, Cantonment, Tiruchirappalli – 620 001.
2. The Joint Commissioner of Customs, No.1 Williams Road, Cantonment, Tiruchirappalli – 620 001.
3. The Joint Director, Office of the Additional Director General, Directorate of Revenue Intelligence, Chennai Zonal Unit, No.27,G.N.Chetty Road, T.Nagar, Chennai – 600 017 https://www.mhc.tn.gov.in/judis 42/43 W.P.(MD).Nos.8711 of 2021 and etc batch C.SARAVANAN,J.
rgm/sn Pre-Delivery Order made in W.P.(MD).Nos.8711, 8713, 8716, 8717, 8719, 8720, 8721, 9312, 9313, 9314, 9320 and 9322 of 2021 & W.M.P.(MD).Nos.6574, 6575, 6576, 6577, 6578, 6579, 6580, 7036, 7037, 7038, 7043 and 7046 of 2021 10.08.2022 https://www.mhc.tn.gov.in/judis 43/43