Chander Prakash Verma vs.commissioner of Customs (Preventive) - Court Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on:

6. h February, 2019 Pronounced on:

28. h February, 2019 CUSAA202018 CHANDER PRAKASH VERMA ..... Appellant Through: Ms.Ria Chanda & Ms.Ekta Kapoor, Advocates versus COMMISSIONER OF CUSTOMS (PREVENTIVE) ..... Respondent Senior Through: Mr.Amit Standing with Ms.Seema Dolo, Advocate for respondent. Bansal, Counsel CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE PRATEEK JALAN MR.JUSTICE PRATEEK JALAN % 1. In this appeal under Section 130 of the Customs Act, 1962 [hereafter referred to as "the Act"]., the appellant challenges an order dated 16.05.2017, passed by the Customs, Excise and Service Tax Appellate Tribunal [hereafter referred to as "the Tribunal"]., whereby the Tribunal affirmed the penalty imposed upon him by the customs authorities in respect of smuggling of 18 kilograms of gold into India.

2. At the time of admission of the present appeal, the following question of law was framed by this Court: CUSAA202018 Page 1 of 19 3. “(i) Whether the appellant is right that the order passed by the Customs, Excise and Service Tax Appellate Tribunal is contrary to law as it does not examine and discuss the contentions and issues of facts and law as raised and had arisen for consideration?.” The appellant was served with a Show Cause Notice [hereafter referred to as “SCN”]. dated 20.05.2014, by the Directorate of Revenue Intelligence [hereafter referred to as “DRI”].. It was contended in the SCN that on 22.11.2013, at 11:30 hours the officials of the DRI, acting on intelligence, had observed three persons attempting to remove the inside pad from the door of a Mahindra Scorpio vehicle [hereafter referred to as “the said vehicle”]. parked at Shroff Charitable Hospital, Delhi. It was contended that the appellant was one of these three people and that the pad of the door was being removed to retrieve a consignment of 17 gold bars of 1 kg., each from Nepal, which was concealed therein. Three other persons were seated in the said vehicle. One additional gold bar of 1 kg. was subsequently recovered from one of the seats pursuant to a statement made by one of the persons alleged to have been involved. It was further alleged that the appellant was the owner of a jewellery shop and had procured the gold from a contact in Nepal in contravention of the Act. The gold bars were stated to have been valued independently at ₹5,56,92,000/- and were seized by the DRI, along with the said vehicle. The appellant and the others involved were summoned and their statements recorded under Section 108 of the Act. He is stated to have admitted the allegations against him. The intercepted persons were also arrested under Section 104 of the Act and were released on bail by an order of CUSAA202018 Page 2 of 19 the competent Court dated 07.12.2013. When he was produced before the Magistrate, the appellant retracted the statement made to the customs authorities, stating that he had been coerced into making it.

4. The appellant filed a reply dated 27.08.2014, to the SCN, in which he denied any concern with the gold or the smuggling thereof but claimed to have been present at the site only as a curious onlooker, having gone to the hospital along with an employee to make an appointment for his mother. He also stated that he is 70% disabled on account of "congenital CTEV of left foot and brain damage”, and suffers from regular fits owing to a cerebral problem. He pointed out certain alleged inconsistencies in the statements recorded by him as against those recorded by the other intercepted persons, and various alleged irregularities in the investigation.

5. The Additional Commissioner of Customs (Preventive) passed the order-in-original dated 31.10.2014 confiscating the gold bars and the vehicle, and imposing penalty on various persons, including a penalty of ₹50 lakhs on the appellant under Section 112 of the Act. The order of the adjudicating authority considered the facts narrated in the Show Cause Notice and the replies of the noticees, including the appellant. In view of the grounds agitated by the appellant before us, it is necessary to notice the orders passed at each stage in some detail. So far as the appellant is concerned, the order-in-original records as follows: “23. Role of Noticee No.4, Chander Prakash Verma: Sh. Chander Prakash Verma owns a jewellery shop in Chandni Chowk, Delhi ·and hatched a plan in association CUSAA202018 Page 3 of 19 with his distant Nepal based relative Ramuji to smuggle gold from Nepal to India through Indo-Nepal border in contravention of the provisions of the Customs Act, 1962, to earn huge profits by smuggling of gold and willfully evading the licit import route of Gold procurement. Chander Prakash Verma, who was the intended recipient of this consignment of 18 Kgs. of smuggled Gold Bars, is also one of the main persons of the syndicate in this case as the whole exercise of the Gold smuggling in this case was undertaken at his behest and was designed to provide huge undue monetary gains to him. He was arrested at the time the said gold was being taken out from the Scorpio vehicle along with his employee Subodh Kumar. Both of them are the receiving party of the gold consignment. 23.1 In his ·reply to the Show Cause Notice and during the Personal Hearing, he submitted that he had retracted his statement before Customs under Section 108 of the Customs Act, 1962. However, his defence that he had gone taking to be only an appointment of a doctor appears afterthought. His physically handicapped person, hence incapable of such unlawful activities, is also unacceptable. to Shroff Hospital Daryaganj being for defence of 23.2 As per the voluntary statement recorded under Section 108 of the Customs Act, 1962, Shri Chander Prakash Verma had taken the delivery of smuggled Gold on previous occasions also. The willful and deliberate involvement of Chander Prakash Verma in the smuggling of Gold has rendered him liable for penalty under Section 112 of the Customs Act, 1962. 23.3 In his submissions during the personal hearing, the Noticee's advocate submitted that he had retracted his voluntary statement made earlier before the DRI under Section 108 of the Customs Act, 1962. He informed that the Noticee is a small time jeweler running a proprietary firm in the name of G.P. Jewellers in Chandni Chowk, CUSAA202018 Page 4 of 19 Delhi. He further submitted that he is a handicapped person suffering form disability and on the day under consideration he had merely gone to the Shroff Hospital, Daryaganj, Delhi for seeking an appointment for his old mother who is a regular patient of the hospital. The Noticee claims that he had stopped at the place of Gold seizure out cruosity and the DRI Officers have merely picked him up on cooked up charges. 23.4 However, the claims of the Noticee appear to lack merit. Firstly while dealing with the issue of his handicap, it is an admitted fact that the Noticee has himself stated that he runs a proprietorship firm in the name of G.P. Jewellers dealing in Gold and Silver Jewellery, in Chandni Chowk, Delhi. Thus, it is clear that the disability / handicap of the Noticee does not prevent him from running his jewellery business and carrying out its day-to-day affairs. 23.5 The Noticee's second claim that the notice had nothing to do with the Gold smuggling and was merely a curious onlooker who was falsely apprehended by the DRI also appears to be without merit. The Noticee was found standing next to the Scorpio vehicle used in Gold Smuggling along-with his servant and other Noticees. In his voluntary statement given to the DRI which was later retracted, he had clearly admitted that he had gone there with his servant to take delivery of the smuggled gold as per their plan drawn up with his distant relative in Nepal, Ramuji, to get the gold at low price by evading the Customs Duty across the Indo-Nepal Border. 23.6 The Noticee's claim that he was an innocent by stander who was falsely implicated seems to be without any merit and is only a desperate measure to evade the law in any possible manner because it is highly improbable that out of the innumerable people standing in the parking lot of the Shroff Charity Hospital, Daryaganj, Delhi the DRI would as a matter of sheer coincidence randomly pick up a person for gold CUSAA202018 Page 5 of 19 smuggling who then turns out to be the owner of a jewellery firm/shop. Such a coincidence seems most unlikely and thus prima facie the claim of the Noticee being an innocent by stander appears to be without merit. 23.7 It is very clear from the facts that the Noticee being a jeweller by profession and running a proprietary jewellery concern had hatched this plan of getting cheaper gold by way of smuggling from the Indo-Nepal border with the help of his distant relative/acquaintance in Nepal Sh. Ramuji. He was tempted by the idea of getting gold at a much lower price by evading the Customs duties which would lead to a greater profit margins in his business of selling Gold/Silver jewellery. 23.8 In fact, the Noticee had himself confessed to his part in this case of Gold smuggling in his voluntary statement given to the DRI Officers under Section 108 of the Customs Act, 1962 dated 22.11.2013, wherein he had admitted that he had fixed the date and time of taking gold delivery with his distant relative Sh. Ramuji. The said Ramuji had informed about the vehicle number carrying the gold and had told him that a person named Shankar would be coming in a white coloured Scorpio vehicle bearing Reg. No.BR-30-P-1251 and he had fixed with him the place. 23.9 Thus it is clear that the Noticee had already admitted to his role in this case of Gold smuggling in his voluntary statement given to the DRI Officers dated 22.11.

2013. The later retraction of this statement is only an afterthought and a desperate attempt by the Noticee for some kind of defence, which considering the facts and circumstances of the same does not appear to be tenable. The preponderance of evidence shows that the Noticee was involved in gold smuggling and time of Gold delivery.” CUSAA202018 Page 6 of 19 6. The Commissioner (Appeal), by an order dated 22.07.2016, dismissed the appellant's appeal by an ex-parte order, as the appellant had apparently not appeared for the personal hearing. The contentions of the appellant have been considered in the following manner by the Appellate Commissioner: “5.2 I find from the records as well as from the submissions that the appellant Chander Prakash Verma was apprehended form the parking of the Shroff Charity Hospital in the vicinity of confiscated Mahindra Scorpio Car No.BR-30-P-1251 from which the foreign marking gold weighing 18 Kgs. valued at Rs. 5.57 crores was recovered on 22.11.2013. The Appellant has attempted to disassociate himself from the recovered gold stating that he was an innocent bystander. As regards his statement admitting involvement recorded under Section 108 of the Customs Act, 1962 he has attempted to dislodge the same by referring to his retraction filed before the Court of learned CMM immediately after arrest. His contention in nutshell is that he had nothing to do with the subject gold, has become a victim of circumstances being present at the place of occurrence and being a goldsmith by profession running a jewellery shop and has been implicated in the case falsely by the DRI. 5.3 I find from the records that not only Chander Prakash Verma but the other Noticees namely Sunil Chalisa, Shankar Kumar Sah, Murari Kumar, Devender Sah, Raju Kumar, Shankar Kumar, including his own employee Subodh Kumar have admitted their respective statements that Shri Chander Prakash Verma was the recipient of the subject gold . Though as per the Appellant's counsel, all the persons had retracted their respective statements before the court of learned CMM yet the contents of their statements when read together clearly indicate that Shri Chander Prakash Verma was to receive the said gold in Delhi. In so far as the retraction in CUSAA202018 Page 7 of 19 is concerned I am of opinion that the same being an afterthought cannot be given any credence at all. 5.4 As regards the contention of appellant has that the impugned Order is vitiated by non-adherence to the principles of natural justice insofar as the Adjudicating Authority has not allowed cross examination of panch witnesses and other co-accused persons and appellants reliance on various judgments in support of the aforesaid contention, my considered opinion is that the factum of recovery of gold and his apprehension from the place of occurrence not being in dispute, the disallowance of cross examination is of no purpose. Otherwise also as when the co-accused persons have chosen not to participate in the adjudication proceedings or filing Appeal against the impugned Order, calling them for cross examination would have been of no consequence except the adjudication proceedings. Therefore, following· the law propounded by the Hon'ble Madras High Court in the matter of A.L. Jalaludeen- 2010 (261) ELT84(Mad) that principles of natural justice are not violated by now allowing the Appellant to cross examine witnesses. I hold that the arguments of Appellant that the order deserves to be quashed for having been passed without allowing cross examination is not sustainable. for delaying 5.5 In my considered opinion, his guilt of being involved in the alleged smuggling having been brought out in the Show Cause Notice as well as in the Order-in-Original, submissions of the Appellant Chander Prakash Verma made out in the Appeal Memorandum and advanced during the course of hearing are devoid of merit. I hold that the impugned Order insofar as the same relates to Appellant Chander Prakash Verma is unimpeachable. I am in agreement with the findings of the adjudicating authority that the appellant who was the intended recipient of the smuggled gold, is the main person of the syndicate in this case. CUSAA202018 Page 8 of 19 the quantum of penalty 5.6 As an alternate submission, the Appellant has prayed that is very high and incommensurate with the gravity of offence alleged against him. I do not find considerable force in the contention of the appellant. I find that role of the appellant in the act of smuggling of gold is clearly established. Malafide intention/mensrea of the appellant has been clearly established. I find that the penalty imposed by the adjudicating authority on appellant Shri Chander Prakash Verma is just and proper and no interference is warranted. The appeal filed by the appellant has no legs to stand and does not merit any consideration.” 7. The Tribunal has rejected the further appeal of the appellant by the impugned order. As the question of law framed in the present appeal requires a consideration of the manner in which the Tribunal has disposed of the appellant's appeal before it, the arguments of the parties and the analysis of the Tribunal, as recorded in the impugned order, are reproduced below: “3. With the above background, we have heard Ms. Vidushi Shubham, ld. Advocate who submits that the appellant was standing in the parking of the hospital as a curious person. The appellant is a patient and has restricted movement of rist and therefore could not open the door panel. The appellant is handicapped person. On specific query from the Bench, ld. Counsel admitted that the appellant is running a proprietorship firm in the name of G. P. Jewellers in Chandni Chowk, New Delhi. It is the submission of the ld. Counsel for the appellant that later, all the accused have retracted their statement which was recording by the DRI Officers. No opportunity of cross-examination was provided to the appellant. She further submits that the appellant and Subodh Kumar, an employee went to the hospital for seeking an appointment CUSAA202018 Page 9 of 19 from the Doctor. Out of curiosity, they went to the parking lot where they were arrested. At the strength of the written submission ld. Counsel further submits that the impugned order is patently perverse and baseless. The penalty imposed only on the basis of the statement which was later, retracted. No corroborative evidence was found. To support her submission she relied upon the following case laws: (1) Sushil Kumar Kanodia vs. CC, Chennai- 2008 (12) STR798(Tri. Chennai) (2) Commissioner vs. Sushil Kumar Kanodia -2015 (319) ELT A73 (Mad) (3) Birendera Kumar Singh vs. CC, Lucvknow-2006 (198) ELT460(Tri.Del) (4) Ashwin S. Mehta vs. CC, Mumbai-2006 (197) ELT386(Tri. Mum) (5) Narayan Das vs. CC, Patna -2004 (178) ELT554(Tri. Kol.) (6) Shard Dugar vs. CC, ICD, ND-2003 (151) ELT321(Tri. Del.) (7) Narendra B. Jain vs. CC (Adj.) Mumbai-2014 (304) ELT563(Tri.Mum) (8) M.N. Furniture vs. CCE, Belapur-2017 (347) ELT373(Tri. Mum) 4. On the other hand, Shri R. K. Manjhi, Ld. AR for the Revenue supported the impugned order. He submits that the statements were recorded under Section 108 of the Customs Act, 1962 where they have confessed their involvement in the smuggling of the gold. He submits that appellant is running proprietorship firm in the name of G. P. Jewellers dealing in gold in Chandni Chowk, New Delhi. Thus, it is clear that the disability/ handicap of the appellant does not prevent him from running his jewellery business and carrying out its day-to-day affairs so "being handicapped" is not a ground. CUSAA202018 Page 10 of 19 5. After hearing both the parties at length and on perusal of record, it appears that the gold of 18 kg. with foreign mark was recovered from the car in question. Naturally, it has been smuggled to India by concealing in the door of the driver side. The car is bearing the number of Bihar and as per statement of all the persons, the gold was brought from Nepal where it was purchased with the help, one of the relative of the appellant namely Ramuji. The appellant is running the proprietorship firm under the name of G. P. Jewellers where he was suppose to adjust the gold. Another person is an employee and both the persons went to the parking lot to collect the gold. The appellant was living in the nearby area at Ansari Road so he was well acquainted with the Darya Ganj area from where the gold was recovered. In these circumstances, the appellant cannot disassociate himself from the recovered gold stating that he was an innocent bystander and was a curious lookers. Chander Parkash Verma was the readymade recipient of the smuggled gold. It is alleged that later, all the appellants have retracted their earlier statement, naturally, as per legal advice. The appellant went with his employee Subodh Verma on his scooter which was parked in the parking lot of Shroff Charity Hospital, just to collect the gold. Being an employee it cannot be said that Sh. Verma was not helping these circumstances, we are of the view that the appellant has committed the crime of smuggling. to his master i.e. appellant. In It may be mentioned that the crime of justice never 6. dwells together as per the maxim FRA US ET JUS NUNQUAM COHAMBITANI. The same views were observed by the Hon'ble Supreme Court in the case of Vikas Pratap Singh vs. State of Cltltattisgarh- JT2013(9) SC562 Lastly, it may be mentioned that the smuggling is an activity which hollows the economy of the nation. CUSAA202018 Page 11 of 19 7. In the instance case, the facts and circumstances speaks itself as per the maxim RES IPSA TAX QUITER. The case law cited by the ld. Advocate for the appellant are distinguishable to the facts and are no help in the peculiar circumstances of the case.

8. Hence, in the light of above discussion and by considering the totality of facts and circumstances of the case, we find no reason to interfere with the impugned order where the penalty of Rs. 50 lakhs was rightly imposed on the appellant. In fact it is too less. So, no further relief can be provided to the appellant. Hence, we sustain the impugned order alongwith the reasons mentioned therein. In the result, appeal filed by the appellant is 9. dismissed.” 8. In support of the appeal, learned counsel for the appellant argued that the reliance of the customs authorities and the Tribunal upon the retracted statement of the appellant, and the fact that he is a goldsmith, is insufficient to uphold the order or penalty. Learned counsel emphasized that follow up investigation by the DRI did not recover any incriminating evidence from the residence or shop of the appellant and that no telephonic contact between the appellant (or his employee) and the alleged sender of the gold from Nepal has been established. In the alternative, she urged the Court to reduce the quantum of penalty imposed. Learned counsel also referred to the order of the Chief Metropolitan Magistrate granting bail to the appellant, and to the judgments of the Gauhati High Court in Basudev Das vs. Union of India (2011) 272 ELT668(Gau.), and the Madras High Court in B. Laxmi Chand vs. Government of India (1983) 12 CUSAA202018 Page 12 of 19 ELT322(Mad.) and D.V. Kishore vs. Commissioner of Customs (2017) 350 ELT527(Mad.).

9. Learned counsel for the Revenue, on the other hand, submitted that the defences urged by the appellant had been considered and properly adjudicated by the authorities as well as the Tribunal. He emphasised that the appellant's jewellery business and curious presence at the site, where the gold was being retrieved from the vehicle, could not be overlooked. He submitted that the quantum of penalty imposed upon the appellant was commensurate with the finding that the entire operation had been carried out at his behest and with the value of the large quantity of gold involved.

10. With regard to the facts determined by the customs authorities, and affirmed by the Tribunal, we do not detect any perversity or misappreciation, which would warrant our interference. The appellant's reply to the SCN was premised upon the contention that he was at the hospital along with an employee to obtain an appointment for his mother, and happened to be present near the said vehicle only out of curiosity. He also referred to his physical disability, presumably to contend that he was not physically capable of performing the acts attributed to him. However, the appellant did not place any material on record to support his contention that he had attended the hospital to secure a medical appointment, nor did he give any explanation as to why his personal presence, along with an employee, was required for this purpose. Further, it appears from the record that the appellant's disability affects his legs. There is no material to show that it was impossible for him to participate [along CUSAA202018 Page 13 of 19 with others]. in the removal of a padding from a car door. In any event, it is not just his physical participation, but his presence to oversee the operation that has been found against him. In these circumstances, coupled with the fact that he operates a jewellery business, the findings of the authorities that his presence was not merely coincidental, but that he was the intended recipient of the smuggled gold, cannot be faulted.

11. It is in the light of this factual situation and the detailed orders of the adjudicating authority and Commissioner (Appeals) that the consideration of the appeal by the Tribunal must be viewed. Although the Tribunal's analysis of the facts and the contentions of the parties was, in our opinion, somewhat sketchy, this is not a case of complete non-application of mind or unreasoned acceptance of the findings rendered by the authorities. The Tribunal being the final arbiter of facts, it is no doubt vested with the duty to consider the material on record independently and render its findings upon the same. It is settled law that no judgment, even one affirming orders of the authorities or courts below, can be unreasoned. However, there is no uniform standard to determine the level of detail required, so long as the rationale of the decision is clearly discernible.

12. A few decisions of the Supreme Court make this position clear. In Madhya Pradesh Industries Ltd. vs. Union of India and Ors. (1966) 1 SCR466at page 473 [placitum „C‟]., the Court held as follows: “………..That apart, when we insist upon reasons, we do not prescribe any particular form or scale of the reasons. The extent and the nature of the reasons depend upon each case. Ordinarily, the Appellate or CUSAA202018 Page 14 of 19 Revisional Tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case.” In Girijanandini Devi & Ors. vs. Bijendra Narain Choudhary (1967) 1 SCR93 the Supreme Court was considering a judgment of the High Court in an appeal against a decree granted by the Trial Court. The Supreme Court held, at page 101 [placitum „F‟]. of the judgment, as follows: “……….It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the trial court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice.” Considering a regulation which did not expressly require reasons to be given when a disciplinary authority concurred with the view of the Inquiry Officer, the Court held in State Bank of Bikaner & Jaipur & Ors. Vs. Prabhu Dayal Grover (1995) 6 SCC279as follows: “13. ……It can, therefore, be legitimately inferred that when express provisions have been made the in CUSAA202018 Page 15 of 19 Regulations for recording reasons in only the first two of the three fact situations – and not the other – there is no implied obligation also to record the reasons in case of concurrence with the findings of the Inquiry Officer. Even if we proceed on the basis that such an obligation is implicit, still the order of the disciplinary authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Inquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the disciplinary authority agrees with the findings of the Inquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings.” xxxx xxxx xxxx xxxx “14. ……Assuming, that by necessary implication this Regulation also requires the appellate authority to give the reasons, still its order cannot be invalidated, as we find that it has discharged its obligation by considering the records and proceedings pertaining the disciplinary action and the submissions made by Grover. In other words, the order clearly demonstrates that the appellate authority had applied its mind not only to the proceedings of the enquiry, but also the grounds raised by Grover in his appeal and on such application found that there was no substance in the appeal.” to The legal position was formulated in the following manner in Divisional Forest Officer, Kothagudem and Ors. Vs. Madhusudhan Rao (2008) 3 SCC469 “20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by CUSAA202018 Page 16 of 19 the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” The judgments in the aforesaid case, and several other judgments, were cited by the Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and Ors. (2009) 4 SCC240 where it was held thus: “5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.” [Emphasis supplied in all the aforesaid quotations].

13. It follows from the above that, when a Court or Tribunal is faced with concurrent findings of two authorities, it is not necessary to include a detailed reappraisal of the evidence in the judgment of the second appellate forum; a brief statement of the facts which have appealed to the Court and the reasons which have led it to affirm the CUSAA202018 Page 17 of 19 findings of the authorities is sufficient. The present case falls into this category and it is for this reason that the impugned order of the Tribunal is, in our view, adequate.

14. Coming to the orders and judgments cited on behalf of the appellant, we are of the view that none of the said judgments are applicable to the facts of the present case. The order of the Chief Metropolitan Magistrate dated 17.12.2013, granting bail to the appellant and other accused persons, is wholly irrelevant to the issue before us. In any event, the said order is predicated on the facts that the gold had already been recovered, that the accused were not required for further investigation and that the appellant was stated to have been orthopedically handicapped.

15. The judgment of the Gauhati High Court in Basudev Das (supra) has been cited on the question of quantum of penalty. The High Court affirmed an imposition of penalty in circumstances similar to the present case, but reduced the amount of penalty from ₹2 lakhs to ₹1.5 lakhs. Although there can be no automatic application of precedent to the issue of quantum of penalty, we also find that the factual situation in that case was significantly different from the present case, inasmuch as, the incident was of 1999 [as opposed to 2013, in the present case].; the quantity of gold was approximately 1.6 kilograms [as opposed to 18 kilograms, in the present case].; and the person concerned was found to be a petty paan shop owner, who had recently entered into smuggling to augment his meagre income [as opposed to the present appellant, who owns a jewellery shop].. CUSAA202018 Page 18 of 19 16. The judgment of the Madras High Court in B.Laxmi Chand (supra) found the SCN and the orders of the authorities to be vitiated by non-application of mind inter alia with regard to the applicable provision of Section 112 of the Act. The present case does not suffer from any similar infirmity as the facts have been discussed in detail in the SCN, the adjudicating order as well as the Commissioner‟s appellate order. An interpretation of Section 112 which necessitates the citation of a particular clause of the section in the SCN is, in our view, unjustified, as long as the noticee was made aware of the facts upon which the authorities‟ allegations were based.

17. In D.V. Kishore (supra), a Division Bench of the Madras High Court set aside an order made solely on the basis of confessional statements given by the concerned person and other accused persons, where no other inculpatory evidence has been found and where the concerned person had been acquitted in a criminal trial. Such is not the case with the present appellant.

18. In view of the aforesaid, the question of law is answered in the negative, i.e. against the appellant and in favour of the Revenue. The appeal is dismissed. PRATEEK JALAN, J.

FEBRUARY28 2019 „hkaur‟ S. RAVINDRA BHAT, J.

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