Judgment:
1. These appeals are coming up in the second round of litigation on the same set of facts. In the earlier round, these appellants had filed appeals against an order of the Collector or Customs on the main ground that the said order had been passed in violation of the principles of natural justice. Those appeals were disposed of by this Tribunal as per order No. 202/CAL/87 dated 6.11.87 remanding the matter to the Collector for fresh adjudication in accordance with the principles of natural justice. It was clearly mentioned in that order that the appellants were at liberty to adduce fresh evidence before the adjudicating authority in accordance with law. Pursuant to the remand order of the Tribunal, ld. Commissioner of Customs passed order dated 13.12.99 confiscating a Motorcycle and Scooter and India currency of Rs. 6.88 lakhs and imposing penalties of Rs. 50,000/-, Rs. 5,000/- and Rs. 5,000/- on the appellants in the present Appeal Nos. C/89 to 91/2000 respectively. In lieu of confiscation of the vehicle, ld.Commissioner granted option for redemption on payment of Rs. 5000/- each. In Appeal No. C/89/2000, the appellants is aggrieved by the imposition of penalty of Rs. 50,000/-. In Appeal No. C/90/2000, the appellant is aggrieved by the imposition of penalty of Rs. 5,000/- as well as confiscation of his Scooter and Indian currency of Rs. 2.88 lakhs. In the remaining appeal, the appellant is aggrieved by the imposition of penalty of Rs. 5,000/- as well as confiscation of his Motorcycle and Indian currency of Rs. 4 lakhs. In all these appeals, the appellants have once again raised the plea of negation of natural justice, for challenging the order of the Commissioner. This plea has been amplified by ld. Consultant Sh. J.M. Sharma as below.
2. Subsequent to the Tribunal's order of remand, Sh. Samyak Raj (appellant in Appeal No. C/90/2000 and Sh. Yash Rattan (appellant in Appeal No. C/91/2000) submitted their respective cases in writing, to the Commissioner. They also produced additional documents and heavily relied on such documents. According to ld. Consultant, such additional documents were produced before the adjudicating authority in terms of the specific permission given by the Tribunal in its remand order. The document produced by Samyak Raj was copy of a certificate issued by the President of the Chambers of Commerce and Industry (in short CCI) Butwal, dated 10.7.85, a copy of which is available on record in the appeal of Samyak Raj. The document produced by Yash Rattan was also copy of a similar certificate dated 10.7.85 issued by the same person, a copy of which is also available on record in the appeal of Yash Rattan. Both these documents are in Hindi. Ld. Consultant has translated both the documents to me. It appears from the CCI certificate relied on by Samyak Raj, read with the relevant submissions contained in his statement submitted to the Commissioner, that the Indian currency of Rs. 2.88 lakhs was brought into India for purchase of truck and, since such purchase did not materialise, the currency was taken to nepal for return. Similarly, it appears form the CCI certificate relied on by Yash Rattan, read with the relevant submissions contained in his statement submitted to the commissioner, that the Indian currency of Rs. 4 lakhs was brought into India for purchase of truck and, since such purchase did not materialise, the currency was being taken back to Nepal. Ld. consultant has contended that, if the Commissioner had considered and appreciated the documentary evidence adduced by the parties, he would have been convinced of the legality of the transactions. There was no room for any finding of smuggling of Indian currency or of the vehicles having been used for transporting smuggled goods. He further submits that neither the documentary evidence nor the connected submissions of the parties was considered by ld. Commissioner in passing the impugned order,, though the Tribunal's order of remand had held out a mandate to the adjudicating authority to consider any additional evidence which might be adduced by the parties. The adjudicating authority, therefore, has not acted in accordance with the order of remand. Ld. Consultant, therefore, prays for setting aside the impugned order and allowing the appeals.
3. I have also heard ld. JDR Sh. Swatantra Kumar. He submits that the Commissioner has passed a speaking order on all the issues involved in the case. However, he has not contested ld. consultant's submission that the CCI certificates were not taken cognizance of and considered by the adjudicating authority inasmuch as there is no mention of such documents in the impugned order.
4. I have carefully examined the above submissions. There is no dispute of the fact that these appellants were permitted by this Tribunal to adduce additional evidence before the adjudicating authority in de novo adjudication of the matter in terms of the remand order. It is also not in dispute that Samyak Raj and Yash Rattan submitted their written submissions to the adjudicating authority and that, in such statements, they relied on the CCI certificates to disprove the department's case that the Indian currency was being smuggled out of India on the day the currency was seized by the Customs officers. It has also been accepted by ld. DR that the reliance placed by the parties on the CCI certificates was not considered by the adjudicating authority. I therefore, find that the impugned order of the Commissioner is not in strict compliance with the earlier remand order of this Tribunal. The Commissioner ought to have taken cognizance of the CCI certificate produced as additional evidence by the aforenamed persons and considered the same in accordance with law. In such circumstances, the adjudicating authority must be asked to decide the matter afresh in accordance with the letter and spirit of the Tribunal's remand order.
5. I, therefore, set aside the impugned order and remand the matter to the Commissioner of Customs for fresh adjudication in accordance with law and the principles of natural justice. The Commissioner should duly consider the aforesaid additional evidences while dealing with the issue as to whether the Indian currency was being smuggled by the appellants at the material time. It is also made clear that it will be open to the Commissioner to consider any judgement of the Chief Judicial Magistrate, Gorakhpur passed in any criminal case (based on the facts of these cases) against any of these appellants in the context of dealing with the question whether the statements of these persons recorded by the Customs officers on 14.7.85 under Section 108 of the Customs Act were subsequently retracted or not.