1. This is a second appeal under Section 129-A(1)(c) of the Customs Act filed before the Tribunal. As a preliminary point, the departmental representative has pointed out that it is not correct on the part of the Tribunal to hear the present appeal on merits as no order has been passed by the Tribunal under Section 129-E ibid waiving the requirement of depositing the amount of penalty before the appeal is heard and decided on merits. He further pointed out that to his knowledge no application has been made by the appellant for stay of the penalty under Section 129-E of the Customs Act, and therefore the appeal is liable to be dismissed for non-compliance with provisions of Section 129-E. This fact is confirmed by Advocate Shri M.G. Karmali who added that he was about to make this request before the departmental representative pointed out the omission. Shri Karmali made a verbal request to grant the stay pending the hearing and decision of appeal.
Considering the fact that the case had been posted for hearing, we reserved our decision on this point and agreed to proceed with the hearing of the case.
2. Shri Karmali argued that the entire case of the department was based on the confessional statement dated 14-8-80 of Shri Rajesh Tarachand Sajdeh. Shri Karmali pointed out that after his return from his visit abroad on 13-8-80 Shri Sajdesh was arrested and kept in jail custody.
On his release therefrom on 20-8-80 he took the earliest opportunity of writing a letter to the Asstt. Collector of Customs, Santacruz Airport, Bombay, dated 21-8-80 stating that he had been illegally detained by the Customs Officers; that they obtained from him a false statement under threat, coercion and false promises; and that the statement was neither voluntary nor true. In view of this retraction Shri Karmali stated that no reliance could be placed on the earlier statement dated 14-8-80 of Shri Sajdeh as the same was without corroboration. He emphasised the fact that the recovery of the contraband watches and the watch straps was not made from the possession of Shri Sajdeh nor from any registered baggage of Shri Sajdeh. The bag in question had been found from the rear portion of the Aircraft far away from the seat occupied by Shri Sajdeh and no crew member or other person had come forward to testify that the same belonged to Shri Sajdeh. Shri Karmali relied on the decisions of the Supreme Court in the case of Muthuswamy v. State of Madras A.I.R. 1954 S.C. 4; and A.I.R. 1953 page 411, A.I.R.1963 page 1094 and A.I.R. 1957 Supreme Court page 637 and read out the relevant head notes. He also submitted a copy of the Bombay High Court's Judgment in the case of Criminal Appeal No. 1059 of 1966 and sought the benefit of this decision to be given in the present case.
Shri Karmali further contended that there was no corroboration from Shri Dilip Ahuja who had also been given a show cause notice by the Addl. Collector of Customs (Prev.) Bombay. Thus, there was no corroboration at all and since the original statement had been retracted, there was no evidence to connect Shri Sajdeh with the contraband watches and straps seized from the bag. Shri Karmali also discussed the Board's order under which relief in penalty was granted to the appellant and pointed out that the Board's reliance on the oral confession of Shri Sajdeh to the panchas was misplaced. In view of these circumstances, Shri Karmali pleaded that there was no nexus between the seized watches and the straps and the appellant and therefore the appellant was n,ot guilty and no penalty should be levied on him.
3. The departmental representative has pointed out that the appeal of Shri Sajdeh to the Tribunal is time-barred. The Board's order is issued to him on 27-3-82 while his appeal to the Tribunal was received on 30-11-82. This is beyond the period of three months under Section 129-A(3) of the Customs Act and that there is no prayer from the appellant in terms of Sub-section (5) ibid to condone the delay.
Advocate Shri Karmali submitted that the appellant had filed a petition to the Government in terms of the preamble to the Board's Order-in-appeal No. 117 dated 27-3-82 within the period of six months from the date of communication of the order. But the Ministry returned the appeal with their letter Dy. No. 1954/82 AUB dated 2-11-82, to the Advocate with the advice that since the Tribunal had been constituted, the appeal might be filed before the Tribuaal. The Ministry's letter dated 2-11-?82 has been submitted in original by the Advocate with a request to take the same on record and this has been done. Continuing the arguments on merits of the case, the departmental representative opposed the submissions of the Advocate on the grounds that the original statement dated 14-8-80 was recorded under Section 108 of the Customs Act. Under provisions of this law, the person summoned was bound to state the truth and therefore the statement dated 14-8-80 was correct. On the other hand the letter dated 21-8-80 from the appellant addressed to the Asstt. Collector could not be accepted as correct, as the same was not supported by any evidence. He has also pointed out that the appellant had not stated how he was coerced or induced to give a false statement, nor made any attempt to prove so by asking for cross-examination of the officers recording his statement and the witnesses. The panchanama provided the corroboration to the statement of the appellant. In these circumstances, the statement was valid for the purpose of adjudication against Shri Sajdeh. Accordingly, he has opposed the arguments of the learned Advocate of the appellant.
4. We have examined the submissions on both the sides. Taking up first, the merits of the case, the main issue hinges on the acceptability of Shri Sajdeh's statement dated 14-8-80 as a piece of valid evidence. The Advocate has relied on several judgments of the court which points out that the statement was not reliable as it was not a correct and voluntary statement, and not corroborated by any other material.
Examining the contention of the Advocate, we find that the cases regarding the admissibility of statements examined by the courts in the decisions cited by the Advocate are not on all fours with the case of appellant Shri Sajdeh. In the case of Shri Sajdeh, his statement dated 14-8-80 has been recorded under summons issued under Section 108 of the Customs Act. In view of this vital difference the advocate's reliance on the judgments cited by him to argue that the statement of Shri Sajdeh is not a piece of good evidence, is unacceptable. On the other hand there are judgments directly on the issue concerned, namely acceptability of a statement given to a Customs Officer. The Supreme Court's decisions in the case of Ram Chandra Mehta v. the State of West Bengal (1969) 2 S.C.R. 461, A.I.R. 1970 S.C. 940 and in the case of Percy Rustomji Basta v. the State of Maharashtra A.I.R. 1971 S.C. 1087 can be cited. The provisions of Section 108 are judicial provisions within the meaning of Sees. 193 & 228 of the Indian Penal Code and the person summoned has to give a correct and truthful statement. As regards Shri Karmali's contention that the crew member who pointed out the baggage to the Customs has not been identified, we observe that the crew member in question has to be treated as an informer and his identity has to be kept secret and cannot be disclosed under provisions of Section 125 of the Evidence Act. This alleged infirmity cannot be treated as hitting the acceptability of the statement of Shri Sajdeh.
The statement itself has been signed by Shri Sajdeh and he has appended a certificate to the fact that the statement has been read, correctly recorded and has been made without force or coercion. In these circumstances there is not an iota of doubt that the statement is voluntary and truthful. The provisions of Section 108 also enjoin that the statement has to be recorded by a Gazetted Officer of Customs and this has been done in the present case. The statement is thus made before a responsible officer and it has to be accepted as a piece of valid evidence in this case. Besides, the panchanama dated 13-8-80 and signed by the witnesses S/Shri Bhiku Rambhaji Doiphode and Vasant Ganpat Maraskule also records the fact that Shri Sajdeh identified the bag from which the contraband was recovered and claimed it as his own.
Thus, the panchanama provides corroboration of the ownership of the bag by Shri Sajdeh. In view of the aforesaid circumstances the letter dated 21-8-80 from Shri Sajdeh retracting his original statement dated 14-8-80 does not carry any weight. As argued by the departmental representative no effort has been made by Shri Sajdeb by way of cross-examining the officers who recorded Shri Sajdeh's statement or the panch witnesses who were party to the oral admission of the ownership of the bag from which the contraband was recovered. The retraction therefore has no value. Shri Sajdeh has been involved in a deliberate offence of smuggling watches and watch straps and the amount of penalty levied on him is justified. The Central Board of Excise & Customs in the order dated 27-3-82 has already taken a lenient view and reduced the amount of penalty. No further forbearance is called for in the case. The appeal of Shri Sajdeh therefore deserves to fail.
5. As regards the departmental representative's observation that the appeal is time-barred under Section 129-A(3) of the Customs Act, we find that the period of 3 months thereunder has been extended to 6 months under Notification G.S.R. 593 (E) dated 11-10-82 issued under Section 50 of the Finance (No. 2) Act, 1980. From the Ministry's letter dated 2-11-82 submitted by the Advocate, it is seen that the revision petition was received in the Ministry on 25-10-82 by which date new Chapter XV of the Customs Act had already come into existence under Notification No. G.S.R. 597 (E) dated 11-10-82 and G.S.R. 595 (E) Notification No. 223/82-Customs dated 11-10-82. The revision petition was therefore/ wrongly directed to the Government of India and therefore no benefit could be given to the appellant. The appeal to the Tribunal was received on 30-11-82. This is long after the period of 6 months stipulated under the Customs, Central Excise & Gold (Control) Removal of Difficulties Order, 1982 issued under G.S.R. 593 (E) dated 11-10-82. The appeal is therefore clearly time-barred under Section 129-A(3) of the Customs Act read with the order dated 11-10-82. Even when the departmental representative pointed out this fact to the Advocate during the course of the personal hearing, there has been no request for condoning the delay in terms of Section 129-A(5) of the Customs Act. Accordingly we find that the appeal is time-barred and it has to be rejected.
6. Lastly, taking up the preliminary objection of non-compliance with the provisions of Section 129-E of the Customs Act raised by the departmental representative, we find that the plea of Advocate Shri Karmali is an afterthought. If he had been aware of this requirement of law, he would have filed a written application for stay much in advance and not made verbal request at the time of the hearing of the appeal.
Our belief is further confirmed because of the fact that Shri Karmali did not have with him any written application for stay if he had the intention to file one as submitted by him. Thus, Shri Karmali's request for verbal stay is not tenable.. The provisions of Section 129-E are mandatory. Accordingly, the appeal of Shri R.T. Sajdeh is liable to be dismissed for non-compliance with the same.
7. In view of the above analysis, the appeal of Shri Sajdeh fails and is rejected on grounds of merits, time-bar and non-compliance with provisions of Section 129-E of the Customs Act.