1. Shri Mansuk C. Bhatt, Daman filed a Revision Application dated 28.5.1982 under old Section 131 of the Customs Act to the Government of India and this has been transferred to the Tribunal in terms of Section 131 B ibid and is to be treated as an appeal to the Tribunal. This appeal is against the order No. F. ll-99/77-Pr.7697/8746 dated 18.4.1980 of the Deputy Collector of Customs and Central Excise, Goa as confirmed by the order No. 3/49-2/81/10 Goa, dated 20.11.1981 of the Appellate Collector of Customs, Bombay under which a penalty of Rs. 1,00,000/- was levied on Shri Mansuk C. Bhatt under Section 112 of the Customs Act as he was a person concerned in the importation of contraband goods valued at Rs. 9,58,696/- by the vessel 'Deepak Nawka' which was owned by him. The brief facts of the case are that the Customs officers at Betul boarded the vessel on 25.2.1977 following a receipt of information that this vessel was moving in a suspicious manner. They found S/Shri Ratan Jeevan Machhi and Thakur D. Surti had boarded the vessel. The vessel was rummaged by the Customs Officers and this yielded incriminating things showing that the vessel had made a trip to Dubai. The vessel neither had any registration certificate nor any papers like the port clearance from the last port of call. The vessel was therefore seized in the reasonable belief that the same was used for smuggling goods. Statements of the two crew members were recorded and they revealed that the name of the vessel was Deepak Nauka, its owner was Shri Dinesh Kumar Kuwawala and that it had gone to Dubai and brought contraband goods to Goa on 19.2.1977. These contraband goods had been unloaded in a Fishing Hody to the shore.
Further investigations in the matter disclosed that the. contraband goods were landed by Shri Harishbhai Laibhai Patel and they were secreted in a jungle near Sanguem. On 2.3.1977 the Customs staff recovered 67 packages of stainless steel from this place and on 3/4.3.1977 further 11 packages containing wrist watches, watch parts were seized from a field which were kept by Shri Salvador Gonsalves and 13 packages containing cassette tapes, roller, bearings, textiles etc.
were recovered from Bhedsi, a place in jungle near Dodamarg. Thus the total value of the seized goods came to Rs. 3,62,787/- cif and Rs. 9,58,696/- at the local market rate.
2. Advocate Shri Bhatt on behalf of the appellant first narrated the facts of the case as recorded in the Dy. Collector's order. He stated that the appellant had been penalised to the extent of Rs. 1,00,000/-under section 112 of the Customs Act. on the basis of the statements of two crew members Shri Ratan Jeevan Machhi and. Shri Thakur D. Surti. They had implicated the appellant and given the name of the owner of the vessel as Shri Dinesh Kumar Kuwawala. Shri Bhatt submitted that the Craft seized and confiscated was a mechanised vessel having a registration certificate No. PLG 267 of Palghar. The registration certificate would have been issued by the Customs Officer at Palghar and it would also show the name of the owner. It had been urged by him before the Dy. Collector to make the verification, but without success. Similarly, the vessel was engaged in fishing and would have carried a Fishing pass issued by the Customs Officer. This fishing pass would have also shown the name of the vessel's owner. The appellant Shri Mansuk C. Bhatt had disowned the vessel PLG 267 and in these circumstances it was necessary on the part of the Dy. Collector to verify the vessel's registration certificate and the fishing pass to arrive at the correct identity and name of the owner. Shri Bhatt stated that he has also addressed one letter dated 10.8.1981 to the Inspector of Customs, Satpati Port, to issue him a certificate showing the ownership of the vessel Deepak Nauka Registration No. PLG 267. A reminder had been sent on 21.4.1982 by registered post put without any effect. Shri Bhatt. submitted that in the criminal prosecution filed by the Customs Officer. against the appellant Shri Mansuk C. Bhatt he had taken up the, same position viz. that he was not Shri. Dinesh Kumar Kuwawala who was the registered owner of the vessel. In reply to our question Shri Bhatt submitted that the cr. case at Margao is still pending. But. even now the Customs have not produced the documents like the vessel's registration certificate and the fishing pass to confirm the identity of the owner of the vessel. Referring to the Dy.
Collector's order, Shri Bhatt contended that the Dy. Collector had not dealt with any evidence to show that the appellant was the owner of the vessel Deepak Nauka as stated by Shri Hiralal and Shri Hirabhai Shah nor was any evidence produced regarding the alias of the appellant.
Shri Bhatt submitted that the appellant shri Mansuk C. Bhatt was not the owner of the vessel Deepak Nauka. The actual owner might have absconded after giving the vessel for the purpose of smuggling. There was no evidence to hold that the appellant Shri Mansuk C. Bhatt was concerned in the smuggling of the goods and hence he requested that the Dy. Collector's order as confirmed by the order of the Appellate Collector levying a penalty of Rs. 1,00,000/- should be quashed.
3. On behalf of the Collector, Shri Pattekar contended that the vessel's registration certificate does not remain with the Customs Officer. He stated that however, a register is maintained by the Customs. Officer showing the registration of the vessels. The register is known as Galpat Nondh Registers. However, Shri Pattekar admitted that no effort had been made to trace the entry relating to this vessel in the register. In these circumstances, Shri Pattekar submitted that in case it becomes essential to know the registered owner on the basis of the aforesaid records the case may be remanded to the Deputy Collector for denovo adjudication. However, Shri Pattekar submitted that the Appellate Collector had confirmed the Dy. Collector's finding.
The Dy. Collector had held that Shri Dinesh K. Kuwawala was the same person as the appellant Shri Mansuk C. Bhatt and in coming to his conclusion he had relied on the statements of the two crew members S/Shri Ratan Jeevan Machhi and Thakur D. Surti who had gone to Dubai along with Shri Dinesh K. Kuwawala, in the vessel Deepak Nauka. In addition, the Dy. Collector had also relied on the statements of Shri Hiralal and Shri Hirabhai Shah who had identified the owner of the vessel Deepak Nauka as Shri Mansuk C. Bhatt. In these circumstances, the Dy. Collector's order of levying of penalty was justified on the appellant.
4. In reply advocate Shri Bhatt submitted that this was a case of suppression of fact by the department and they had not carried out the investigations even when requested to identify the registered owner of the vessel Deepak Nauka. In these circumstances Shri Bhatt contended that the only conclusion which could be drawn was that the department was not interested in investigating the case.
5. We have examined the submissions made on both the sides. The short point involved in this appeal is to decide the question as to whether the appellant Shri Mansuk C. Bhatt is the owner of the vessel Deepak Nauka. The learned advocate of the appellant has not disputed the fact that Shri Dinesh K. Kuwawala was not concerned in the smuggling of the goods. Shri Bhatt's defence is that the alias of Shri Dinesh K.Kuwawala given as Shri Mansuk C. Bhatt was not correct. In support of his contention he nas argued that the case was not fully investigated and that in casa a reference had been made to documentary evidence like the vessel's registration certificate and the fishing pass, the correct evidence would have been available which would have clinched the question of identity of the owner of the vessel. The statements of the two crew members viz. S/Shri Ratan Jeevan Machhi and Thakur D. Surti were that they along with the other crew members and the owner Shri Dinesh K. Kuwawala went to Dubai for the purpose of bringing the contraband goods. In addition to these two crew members who had mentioned the name of the owner Shri Dinesh K. Kuwawala, another crew member Shri Pushkin Raj Marbros had mentioned the name of the owner as Shri Mansuk C. Bhatt. In his statement recorded under Section 108 of the Customs Act on 1.3.1977, Shri Marbros has deposed that along with the owner of the vessel Deepak Nauka, Shri Mansuk C. Bhatt he went to Dubai along with other crew members including the two crew members who had deposed against Shri Dinesh K. Kuwawala. The statement of Shri Marbros together with the facts of the smuggling corroborated the evidence of S/Shri Ratan Jeevan Machhi and Thakur D. Surti pointing out the alias name of the owner of the vessel Deepak Nauka. In addition, the Deputy Collector further relied on the statement recorded under Section 108 of Shri Hiralal N. Khandar. He has confirmed his acquaintance with Shri Mansuk C. Bhatt who was the owner of the vessel Deepak Nauka. Shri Hiralal's statement further admits his part in the landing of the smuggled goods. Shri Hiralal was present at the jetty in Bombay on 9.2.1977 when the vessel Deepak Nauka left for Dubai and gave a . Pistol and a Walkie Talkie set to Nandu. Shri Hiralal thereafter landed the goods in Goa. The goods have also been recovered which corroborated the smuggling. Thus the evidence of the 3 crew members and the landing agent Shri Hiralal leave no doubt that the appellant was the owner of the vessel Deepak Nauka and that he was known by two different names. This position is not changed even in the absence of the vessel's registration certificate and fishing pass which would mention the registered owner of the vessel. Considering these circumstances, we find that the appellant Shri Mansuk C. Bhatt was the person concerned in the smuggling of the goods and the penalty of Rs. One lakh has been correctly levied on him. Accordingly, we confirm the orders of the Dy. Collector, Goa and the Appellate Collector, B'bay and reject the appeal of Shri Mansuk C. Bhatt.
6. [Order per : K. Gopal Hegde, Member (J)]. - I have had the advantage of going through the order proposed by Brother Dilipsinhji. The basic facts and the contentions of the parties are set out in the order of Brother Dilipsinhji.
7. The challenge in this appeal is the penalty of Rs. 1,00,000/-levied on the appellant. The contention of Shri S.M. Bhatt, the appellant's learned advocate was that there was no legal evidence to establish that the appellant Mansuk C. Bhatt was also known as Dinesh Kumar Kuwawala.
Further, there is also no evidence that Mansuk C. Bhatt was the owner or tindel of the mechanised craft Deepak Nauka, Shri Bhatt had further urged that the order of the Dy. Collector discloses that the vessel had a registration number PLG 267. The registration certificate would have been issued by the Customs Officer at Palghat and the certificate would show the name of the owner. It was also urged by Shri Bhatt that the vessel would have been engaged in fishing; in that case there would have been a fishing pass issued by a Customs Officer. This pass would also disclose the name of the owner. Shri Bhatt contended that there was documentary evidence to establish the ownership of the vessel. The Department ought to have tested the statements of the so called crew members with reference to documentary evidence and the Department without making any investigation solely on the basis of statements of co-accused who subsequently did not even appear before the adjudicating authority, the adjudicating authority had imposed a personal penalty of Rs. l,00,000/- and the finding of the adjudicating authority is not based on any legal evidence and is unacceptable and the Appellate Collector independently did not examine the evidence and his finding is also vitiated.
8. Shri N.K. Pattekar, the learned Departmental representative, did admit during the hearing that the Department did not make any attempt to verify as to in whose name the vessel in question was registered. He had further submitted that if the Tribunal considered that evidence is essential the matter may be remanded to the Dy. Collector for denovo adjudication.
9. The case of the Department has been summarised by the adjudicating authority in pages 12 and 13 of his order. The summary reads :- "One Mr. Hiralal N. Shah, after making all the arrangements, for the receipt and disposal of the goods in Goa, arranged the Craft "DEEPAK NAUKA" bearing Regd. No. PLG 267 for smuggling the goods under seizure from Dubai. Accordingly, "DEEPAK NAUKA" obtained a Port Clearance for Porbunder and sailed from Versova, Bombay for Dubai.
Shri Hiralal N. Shah reached Dubai by Flight and loaded the goods in the craft and returned to Goa. On or about 20.2.1977, the Craft "DEEPAK NAUKA" reached Goa and landed the contraband goods at Velsao, Goa. The stainless steel discs valued at Rs. 1,43,400/- (m.v.) as per Annexure "A" of the Show Cause Notice were delivered to one Mr. Manilal Gosalia and a part payment of Rs. 15,000/- was made in this regard. These goods were kept concealed in a Jungle by burying the same under the ground. The wrist watches and watch parts valued at Rs. 6,55,766/- (m.v.) were kept concealed by Shri Salvador Gonsalves in a Hay stack in a field at Agasaim. The Packages containing Cassette tapes, Roller bearings, Textiles etc. totally valued at Rs. 1,57,730/- (m.v.) were kept concealed in a house, under lock, at Bedshi by Ramkrishna S. Parmekar with the help of S/Shri Subi A. Chodankar and Babu Dhangar. The part sale proceeds of the Stainless Steel amounting to Rs. 5,000/-have been recovered from Mrs. Ruby Gonsalves wife of Shri Salvador Gonsalves (and Rs. 6,100/- from the person of Shri Hiralal N. Shah. One Pistol with one spare magasine and 14 bullets which were landed from, the Craft were also recovered from the residence of Shri Salvador Gonsalves. It is also revealed that the Truck TATA GDS 2745 was utilised for the transporting of the whole goods under seizure from the Sea Shore of Velsao to the different agencies and the Truck TATA Mercedez Benz Dumper GDT 7239 was utilised for the transporting of the stainless steel discs from the Factory cum Garage of M.K. Gosalin to Dhatremudi for dealing the same under the ground.
The Craft "DEEPAK NAUKA" along with the contraband goods was brought by the Tindel/Owner Shri Dinesh Harishanda Kuwawala alias Mansukh C. Bhutt and the other crew members namely : The Crew members except S/Shri Ratan Jeevan Machhi and Thakur B. Surti left the craft after the goods were landed at Velsao." 10. At the end of page 18 and in the beginning of page 19, the Dy.
Collector had recorded his reasons for imposing penalty on the appellant Mansukh C. Bhatt. The reasons given are :- "He is absconding. He is the owner and tindel of the Craft "DEEPAK NAUKA" in which the goods under seizure were loaded at Dubai and landed at Velsao. He knowingly used the vessal exclusively for the purpose of smuggling the goods into India. These facts are supported by the statements of Shri Hiralal N. Shah, Thakur D. Surti; Ratan Jeevan Machhi and Pushkin Raj Marbros." The Appellate Collector also relied on the statements of the witnesses on whose statements the Dy. Collector had relied on. The Appellate Collector had also drawn adverse inference against the appellant because of his conduct of abscondance.
11. From the order of the Dy. Collector it is clear that excepting one all the other witnesses namely, Ratan Jeevan Machhi, Thakur D. Surti and Pushkin Raj Marbros did not send any reply to the show cause notice. They also did not participate in the adjudication proceedings.
12. The evidence referred to in the order of the learned Dy. Collector satisfactorily established that the mechanised craft "Deepak Nauka" was engaged by Shri Hiralal N. Kandar alias Hirabhai Shah for the purpose of smuggling stainless steel wrist watches of foreign origin as well as other articles seized in this case. The appellant before us did not contend that "Deepak Nauka" was not used in the smuggling of contraband goods. His contention was that he was not the owner of "Deepak Nauka" and he was not at all present when the said vessel was used in the smuggling of the contraband goods. As stated earlier, the Dy. Collector who held the adjudication concluded that the appellant was the owner and tindel of Deepak Nauka. He knowingly used the said vessel for the purpose of smuggling the goods into India. The question for our consideration is whether this finding of the Dy. Collector confirmed by the Appellate Collector was established by the evidence on record. In his order, the Dy. Collector extracted the statements of the witnesses on whom he placed reliance for his conclusions. In an identically worded statements namely, Thakur Dhanji Surti and Ratan Jeevan Machhi stated that the owner of the vessel Shri Dinesh Kumar Kuwawala along with other crew members sailed to Dubai and after waiting for nearly three months at Dubai they sailed back to Goa and the smuggled goods were unloaded into the fishing body. Both these witnesses did not state that Dinesh Kumar Kuwawala had any other name. The witness Pushkin R.Marbros no doubt stated that Dinesh Kumar Kuwawala alias Mansukh C.Bhatt was the owner and a crew member of the mechanised craft. But then this witness P. R. Marbros did not give the name of the mechanised craft. He did not state that the mechanised craft referred to by him was Deepak Nauka. Mansukh C. Bhatt was not identified by any of these three witnesses. They did not even identify the photograph of Shri Mansukh C. Bhatt. They also did not state that they were employed by Shri Mansukhbhai. Significantly Thakur Surti and Ratan Jeevan Machhi could name only three other crew members and not the names of others.
According to their submission they were at Dubai for about three months when that is so it is highly improbable that they would not have known the names of other crew members, when they were together for three months. The other witness Hiralai alias Hirabhai Shah stated that he got acquainted with one Shri Mansukh C. Bhatt and he further stated that he was the owner of the craft Deepak Nauka. Significantly this witness did not state that Mansukh C. Bhatt with whom he is acquainted was also known as Dinesh Kumar Kuwawala. The evidence of all the four witnesses was that either Mansukh C. Bhatt or Dinesh Kumar Kuwawala was the owner of the craft Deepak Nauka. When three out of the four witnesses did not state that either Dinesh Kumar Kuwawala or Mansukh C.Bhatt had another name either as Mansuk C. Bhatt or Dinesh Kumar Kuwawala, the Customs authorities ought to have verified the registration certificate as well as the register maintained by them in order to ascertain as to in whose name the craft Deepak Nauka was registered.
13. The finding of the Dy. Collector as well as the Appellate Collector that the appellant was absconding appears not based on satisfactory evidence. Just because the show cause notice was not received by the appellant, no inference of abscondance can be drawn. The evidence discloses that the vessel Deepak Nauka sailed to Dubai after taking port clearance from Versova. If investigation had been done at Versova port, the particulars regarding the crew members and the tindel would have been got. No effort was made by the Department in this regard.
14.In order to impose personal penalty it would not be necessary to establish that the vessel was used in the smuggling of contraband goods. It would be sufficient if there is evidence to establish that the appellant was one of the crew members or tindel of the vessel and the smuggling activities took place with his knowledge or with his connivance. The question of ownership became important because of the statements made by the witnesses. All the four witnesses on whose evidence the Department relied have stated that either Dinesh Kumar Kuwawala or Mansukh C. Bhatt was the owner and tindel of the vessel.
This ownership is capable of verification from the official records maintained by the Customs. When the evidence of the witnesses as stated earlier is not consistent that Mansukh C. Bhatt had another name and when none of the witnesses either identified, Mansukh C. Bhatt or his photograph it would be hazardous to rely solely on their oral statements particularly when those statements could get corroboration by authentic documentary evidence which is in Customs custody. I, therefore, hold that the order passed by the authorities below in so far as it relates to Shri Mansukh C. Bhatt is required to be set aside.
I however accept Shri 'Pattekar's contention that the matter should be remanded for further verification of the vessel's records and also the records in the Versova port.
15. I, therefore, while allowing this appeal, remand the matter to the adjudicating authority for consideration afresh of the liability of the appellant for personal penalty in the light of the observations contained in this order. Parties are at liberty to adduce fresh evidence before the Deputy Collector.
16. [Difference of opinion]. - As there is difference of opinion between the two Members, the appeal records are submitted to the President for referring the following point of difference to one or more other Members of the Tribunal as provided under Section 129C(5) of the Customs Act.
(1) Whether on the facts and in the circumstances of the case, the appeal should be rejected as held by M(T) or should be allowed and the matter should be remanded to the adjudicating authority for consideration afresh as held by Member (J).
Sd/- Sd/- Member (T) Member (J) 1.5.1987 1.5.1987 17. On reference [Per : P.C. Jain, Member (T)]. - The following point of difference of opinion occuring between the learned two Members of the West Regional Bench Shri K.S. Dilipsinhji, Member(T) and Shri K.Gopal Hegde have been referred to the Hon'ble President under Section 129-C(5) of the Customs Act and the same has been referred to me for my opinion : "Whether on the facts and in the circumstances of the case the appeals should be rejected as held by Member (T) or should be allowed and the matter should be remanded to the adjudicating authority for consideration afresh as held by Member (J)." 18. The learned advocate Shri S.M. Bhat, appearing for the appellant has supported the decision of the learned Member (J), as against the decision of the learned Member (T), although he has stated that the penalty against the appellant could be set aside without remanding the matter to the original adjudicating authority, inasmuch as the case is pending for about a decade now. There is no question of imposing of penalty on the appellant inasmuch as the identification of the appellant as the owner of the vessel 'Deepak Nauka' is totally lacking despite the fact that documentary evidence is available with the customs authorities themselves and they have not cared to produce the same either before the adjudicating authority or before the Tribunal.
The appellant is said to be indicated merely on a statement of one of the co-accused namely, Pushkin Raj Marbaros. He has stated that Shri Dinesh Kumar Kuwawala alias Mansukh C. Bhatt is the owner of the aforesaid vessel. The other 3 persons whose statements are sought to be relied upon by . the lower adjudicating authority according to the learned Member (T)'s opinion have described the owner of the vessel either as Dinesh Kuwawala or as Mansukh C. Bhatt. They have not said anywhere that there is one person having both names. Apart from this there is also no evidence whatsoever that Mansukh C. Bhatt referred to above is the same as the appellant. On a query from the Bench as to how the identification could be carried out in the absence of non-appearance of Mansukh C. Bhatt before the customs authorities, learned advocate has stated that apart from personal identification or by identification through photograph which is not possible without the appearance of Mansukh C. Bhatt -there could be some other evidence by way of his address being mentioned in the statement of the members of the crew. Apart from this -fact, learned advocate has rightly addressed that the fact whether the appellant is the owner and tindel of the vessel "Deepak Nauka" with registration No. PLG 267 could very well be verified from the documentary evidence available with the customs authorities, as referred to in the finding of the learned Member (J).
19. Shri N.K. Pattekar, learned JDR appearing for the respondent has supported the findings of the learned Member (T).
20. I have gone through the pleadings advanced by both the parties and I have also perused the opinions of the learned brothers Shri K.S.Dilipsinhji, Member (T) and Shri K. Gopal Hegde, Member (J). Having regard to the over-all facts and circumstances and the state of evidence available on record, I respectfully agree with the view and the reasons of the learned Member (J) advanced in support thereof.
Sd/- 21. [FINAL ORDER]. - The point of difference between the two Members of this Bench was referred by the President in terms of Section 129-C of the Customs Act to the third Member Shri P.C. Jain who has since recorded his finding. In terms of the provisions of the aforesaid Section, the appeal is required to be disposed of on the basis of the majority opinion. In majority opinion, the appeal of Shri Mansuk C.Bhatt is allowed, but the matter is remanded to the Deputy Collector of Customs & Central Excise, Goa for fresh consideration of the liability of the appellant to personal penalty in the light of the observations contained in the Tribunal's order. Both the sides are at liberty to adduce fresh evidence before the Deputy Collector of Customs & Central Excise Goa.
Sd/- Sd/- K. Gopal Hegde K.S. Dilipsinhji Member (J) Member (T)