Full Judgment
2. Today the DR has responded by saying that the receipt of service of the adjudication order is not readily available in the concerned Customs Commissionerate. This submission is based on a letter dated 23-12-2003 of the Additional Commissioner of Customs, Amritsar.
3. I have perused this letter which categorically states that the Commissionerate does not have any receipt of service of the adjudication order. In view of this position, I have to accept the statement made by the applicant in para 4 of the present application which is to the effect that the impugned order was received by the applicant only on 10-3-2002. There is no delay in filing of the appeal and the present application is rejected.
4. I take up the stay application which prays for waiver of pre-deposit and stay of recovery in respect of the penalty amount of Rs. 2 lakhs.
The Counsel for the applicant submits that, on the same set of facts, the Hon'ble High Court of Punjab & Haryana has acquitted the applicant of all charges under the N.D.P.S. Act, 1985. The Counsel relies on para 19 of the High Court's judgment which reads as under :- "19. So far as the case of Pipal Singh appellant is concerned, we find force in the arguments advanced by Mr. Chhabra. Admittedly, he was not nabbed at the spot along with his three co-accused, namely Ajaib Singh, Gurmej Singh and Satnam Singh. No recovery had been effected from him. He was subsequently arrested through warrants of arrest obtained from the concerned Court after his co-accused had made statements before the custom officials showing his involvement along with them. So far as the statements dated 25-l-199'6 and 26-1-1996 made by Pipal Singh appellant is concerned, we are of the view that those statements are not free from doubt, as he was in the custody of Customs officials and the possibility of duress or coercion at the hands of the Customs officials cannot be ruled out.
Beyond this, the prosecution has no evidence worth the name to link Pipal Singh appellant with the alleged recovery of contraband. The statement recorded under Section 108 of Customs Act, 1962 although is admissible piece of evidence, but cannot be enough in its individual characteristics to record a conviction. Consequently, extending the benefit of doubt in the case of Pipal Singh appellant, we acquit him of the charge framed against him under Section 23 of the Act." Counsel submits that it has already been found by the High Court that the reliability of the statements of the applicant recorded under Section 108 of the Customs Act, while he was under the custody of Customs officials, is not free from doubt. The statements dated 25-1-96 and 26-1-96 of the applicant have been considered by the High Court in this connection. The very same statements were relied upon by the Commissioner to find applicant to be liable for penalty under Section 112 of the Customs Act. The DR submits that the findings noted by the High Court in its appellate jurisdiction under the N.D.P.S. Act cannot be any basis for examining the legality or otherwise of the penalty imposed on the party by the Commissioner of Customs under the Customs Act.
5. Though this submission of the DR is not out of place, I am inclined, for the limited purpose of Section 129E of the Customs Act, to rely on the High Court's findings for the purpose of taking a prima facie view.
Accordingly, wavier of pre-deposit and stay of recovery are granted in respect of the entire amount of penalty. The appeal will be heard on 27-5-2004.