| SooperKanoon Citation | sooperkanoon.com/5716 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi |
| Decided On | May-18-1990 |
| Judge | J T P.C., G B Deva |
| Reported in | (1991)(33)LC184Tri(Delhi) |
| Appellant | Raj Kishore Gupta and ors. |
| Respondent | Collector of Customs |
(I) Whether the Hon'ble Tribunal was right in upholding the order in the face of the fact that there is no express finding regarding liability of confiscation to gold alleged to be delivered to the appellant.
(II) Whether or not the decision and order of Hon'ble Tribunal is perverse as being without evidence and also being opposed to the evidence.
(III) Whether or not the Hon'ble Tribunal was right in relying upon the statement of S/Shri U. K. Agarwal and M. K. Aggarwal which had not been recorded in accordance with the provisions of Section 108 of the Customs Act, 1962 and in circumstances which did not induce any confidence as to its voluntary nature? (IV) Whether or not the Hon'ble Tribunal could treat the said two statements to have been recorded under Section 108 of the Customs Act, 1962, considering that the said two persons were transferred from police custody to Customs custody? (VI) Whether order of the North Regional Bench of Cegat dated 20.11.1989 upholding penalty of Rs. 2.50.000/- upon the applicant, Shri Raj Krishan Gupta under Section 112 of the Customs Act, 1962 can be held to be justified in view of the retracted statements of U.K. Aggarwal and M.K. Aggarwal and others, which were not used literatum-et-verbatim.
(A) Whether initiation of proceeding and framing of charge of alleged contravention of Section 112(b) of the Customs Act is authorised under the Customs Act in respect of gold bars not available for seizure? (B) Whether initiation of proceeding and framing of charge of alleged contravention of provisions of Customs Act on the basis of uncorroborated statement of an accomplice after he had retracted the same and the accomplice being not available for service of show cause notice even? (C) Whether order of imposition of penalty of Rs. 2.50.000/- in absence of evidence of delivery of any definite quantity of alleged smuggled gold on any specified date and of value of the said smuggled gold can be sustained.
(D) Whether Appellate Tribunal's finding on the question of interpretation of Section 139 of the Customs Act and of the Kerala High Court's decision reported in 1984 (15) ELT 129 is right and sustainable. Whether the Appellate Tribunal should have been considered the effect of decision of the Supreme Court reported in AIR 1985 S.C. 866.
(E) Whether the Appellate Tribunal was right in its interpretation of finding in the Order-in-Original regarding alleged projection by Mukesh Kumar Agarwal of involvement of Raghunandan Jalan and of the circumstances relied on in holding involvement of Raghunandan Jalan with others in the disposal of smuggled gold in India on behalf of Chouth Mal Jatia? (F) Whether the Appellate Tribunal was improperly discriminatory in denying the benefit of considerations and reasonings in the appeal preferred by Raghunandan Jalan which were extended in the case of appeal by Vinod Bansal.
(G) Whether the Appellate Tribunal was right in taking a benign benevolent view of the lapses in framing of the charges and dismissing the appellant's objection as being merely drafting error in the show cause notice which would not vitiate the proceeding after holding that the show cause notice could be more appropriately worded? (H) Whether the Appellate Tribunal was right that no doubt is left that the Collector has not believed the statement of the appellant when the question for consideration was total suppression of the statement in spite of admittedly relying upon the same in the show cause notice? (I) Whether the Appellate Tribunal was right in ignoring the objection regarding violation of principles of natural justice and non-application of mind by the authority holding adjudication.
(i) Whether initiation of proceeding and framing of charge of alleged contravention of Section 112(b) of the Customs Act in respect of alleged gold not available for seizure are sustainable? (ii) Whether the Appellate Tribunal is right in holding that the statements of U. K. Agarwal and M. K. Agarwal in facts and circumstances and on evidence on record have been rightly relied upon.
(iii) Whether alleged evidence found to have amply corroborating the statements of U. K. Agarwal and M. K. Agawal in several details can be accepted as meeting the requirements of law of needed corroboration by independent evidence in material particulars? (iv) Whether the Appellate Tribunal is right in its interpretation of alleged evidence and circumstances as corroboration of statements of the two accomplices? (v) Whether the observations in Kerala High Court's decision reported in 1984 (15) ELT 129 have any relevance in the facts and circumstances of the present case and does the same override the decision of the Supreme Court decision reported in AIR 1985 S.C. 866? (vi) Whether the Appellate Tribunal is right in avoiding, the question of non-application of mind by the adjudicating authority in finding that Mukegh Kumar Agarwal projected the involvement of the applicant also in the disposal of foreign marked gold in his statement and Mukesh Kumar Agarwal delivered foreign marked gold to the applicant personally at Bombay? (vii) Whether the circumstances referred to and/or relied upon can be said to be circumstances available as evidence in law? (viii) Whether the Appellate Tribunal in spite of finding that the charge as framed could be more appropriately worded was right in dismissing the object as mere drafting error in show cause notice which would not vitiate the proceeding that too ignoring decision reported in AIR 1968 Cal. 28? (ix) Whether the Appellate Tribunal was right in interpreting ipso jacto discharge, assumption of power to hold adjudication in respect of the applicant, justification of finding of guilty in spite of admitted reliance on the statement of the applicant, placing reliance on alleged circumstances referred to as evidence, denial of the privilege of benefits of consideration extended in the case of Vinod Bansal by the Appellate' Tribunal and in its reliance of the observation of kerala High Court decision reported in 1984 (15) ELT 129 and other decisions in the facts and circumstances of the instant case? 3. In order to appreciate the purported questions of law raised in the subject applications it is appropriate to set out briefly the facts as found by the Tribunal in the impugned order: 1.2 Acting on a secret information, two persons, namely Umesh Kumar Agarwal (U. K. Agarwal) and Mukesh Kumar Agarwal (M. K. Agarwal) were apprehended by the Station House Officer (Police), Vasant Vihar between 4.30 and 6.00 hrs. on 17.12.1981 in a taxi No. DLT-4940 which came from the side of Hilton Lodge Guest House. As the taxi came to a halt, a boy who later disclosed his identity as U. K. Agarwal tried to get out of the taxi with a cream coloured suitcase in his hand. He was overpowered by the Police officer then and there. In the meantime, a person namely D.S. Sodhi, T/O B-4/6, Vasant Vihar happened to pass that way. He was also made to join the Police party. On questioning about the contents of the suitcase, U. K. Agarwal first gave some evasive replies but ultimately admitted that he was carrying some contraband gold and its sale proceeds. He further stated that another boy namely M. K. Agarwal was also with him and that they were going to catch a flight from Delhi Airport.
Since the police station (Vasant Vihar) was at a stone's throw from the place of their interception, both of them were brought to the Police station in the same taxi. D.S. Sodhi also accompanied. From the cream-coloured suitcase in the presence of two witnesses contraband gold in the shape of bars with foreign markings (total number 55) and weighing 11,515.600 gms. were recovered. On further search Indian currency notes wrapped in six bundles amounting to Rs. 5,31,852/- were also recovered. From another suitcase carried out by U. K. Agarwal, a telephone diary, few papers and used clothes were recovered. Both these suitcases were taken by the Police Officers under a seizure memo which was signed by the two witnesses namely Shri P.S. Sodhi and Shri Bhupinder Singh, the the taxi driver and U. K. Agarwal. One suitcase and the briefcase were found in the possession of M. K. Agarwal. On search of the suitcase, it was found to contain used clothing, some watch parts and a bundle of incriminating papers which were also taken under the seizure memo signed by the aforesaid two witnesses and M. K. Agarwal. On demand both of them namely U. K. Agarwal and M. K. Agarwal could not give any satisfactory explanation for the lawful import, acquisition, possession or custody and control of the said gold and Indian currency.
1.3 Both of them were detained by the police in the reasonable belief that they had committed some cognizable offence. They were later produced by the Police officer at the residence of Metropolitan Magistrate with a prayer for two days Police remand.
The Assistant Director, Directorate of Revenue Intelligence, New Delhi also moved an application to the said Metropolitan Magistrate with a prayer to transfer the same for the purpose of enquiry under the Customs Act, 1962 and Gold (Control) Act, 1968 etc. The learned Magistrate after hearing the arguments ordered for transfer of the seized case property along with the two persons namely U. K. Agarwal and M. K. Agarwal to the officers of the Directorate of Revenue Intelligence, New Delhi for making enquiries under the aforesaid Acts.
1.4 The officers of the Directorate Revenue Intelligence thereafter took over the said gold, Indian curiency, other articles and {documents recovered from the above said two persons from the police officers in the presence of two independent witnesses, S.H.O. Police Station at Vasant Vihar and the said U. K. Agarwal and M. K. Agarwal. These articles were seized by the officers under the Customs Act, 1962 and Gold (Control) Act, 1968 because the gold and the Indian currency and other articles were considered to be liable to confiscation under the said two Acts as the case may be.
3.1 Further a detailed statement was recorded under Section 108 of the Customs Act from U. K. Agarwal. In his statement he explained how be was operating as an associate of Chouth Mal Jatia and other persons and how he had been delivering the goods (gold) to various other parties at Bombay and Delhi. He also explained that he delivered gold (about 200 tolas) to one Omi Jalan in November 198l. Their telephone numbers were found in his pocket diary recovered from him by the Police on 17.12.1981. He also explained how he delivered gold personally to Raj Kishore Gupta at the latter's house in Mohalla Vakilpura, near Jamamasjid. He also stated that he delivered gold to Raghunandan Jalan, a resident of Sagar Apartments in New Delhi and that he personally went there with that smuggled gold and delivered the same to Raghunandan Jalan. He also identified a photo of Raghunandan Jalan to whom he made the delivery of the gold. He also explained that he was having with him the sale proceeds of smuggled gold in the form of Indian currency and how he concealed the recovered smuggled gold and Indian currency from the creamish coloured suitcase and kept the same duly locked in the room of M. K. Agarwal in Hilton Lodge.
3.2 M. K. Agarwal in his statement recorded under Section 108 of the Customs Act largely corroborated the statement of U. K. Agarwal.
4. Now taking up the purported questions of law raised by the applicants we shall deal with the same separately: Q. No. (I)-Dealing with this question raised by the applicant during the course of hearing of the appeal leading to the impugned order, the Tribunal found as follows: With regard to the penal action against O. P. Jalan, Raghunandan Jalan and Raj Kishore Gupta, the Collector has made the following finding: Shri Mukesh Kumar Agarwal in his statement projected the involvement of Om Prakash Jalan, Raghunandan Jalan and Raj Kishore Gupta in the matter of disposal of foreign marked gold in India. He disclosed that he delivered 200 tolas foreign marked gold to Omi Jalan personally at Bombay and gave the residential and office telephone of Omi Jalan. These telephone Nos. of Jalan were written in the diary seized from Umesh Kumar Aggarwal/ Mukesh Kumar Aggarwal. He further disclosed that he also delivered foreign marked gold previously to Raj Kishore Gupta at his residence at Vakil Pura and Raghunandan Jalan at his residence at Sagar Apartments, Delhi and identified their residence as well as photographs. The fact that Chouth Mal Jatia was known to Raghunandaa Jalan and Raj Kishore Gupta and they went to Kathmandu and met Chouth Mal Jatia are sufficient to prove the involvement of Om Prakash Jalan, Raghunandan Jalan and Raj Kishore Gupta in the disposal of smuggled gold into India on behalf of Chouth Mal Jatia. I, therefore, hold Om Prakash Jalan, Ragbunandan Jalan and Raj Kishore Gupta guilty in the disposal of smuggled gold in India.
From the aforesaid finding it is apparent that the gold in question alleged to be delivered, inter alia, to Raj, Kishore Gupta was regarding 'disposal of smuggled gold in India' It is implicit in the aforesaid extracted findings of the Collector and in particular his finding regarding disposal of smuggled gold that the gold delivered to Raj Kishoro Gupta was liable to confiscation. It could have been appropriate to give an express finding regarding liability of confisation to gold alleged to be delivered to Raj Kishore Gupta.
However, this will not vitiate the order so long as a necessary implicit finding can be read into the findings of the adjudicating authority. Such an implicit finding we have mentioned above is apparent from Collector's findings. Accordingly, we uphold the penalty imposed on Shri R. K. Gupta.
5. Learned advocate has now urged that in the absence of any express finding regarding liability to confiscation of gold, penalty could not be imposed on the applicant.
5.1 We do not think that any question of law is involved in this proposition. A finding which is necessarily implied is as good as an express finding. No authority has been cited by the learned advocate to the contrary in support of his proposition. Accordingly, we do not think that in the facts and circumstances any question of law as proposed is involved in the instant case.
Q. No. (II)-This question is not a question of law. Learned advocate for the applicant has not pointed out that the finding of the Tribunal is perverse or as being without evidence. An appreciation of evidence on record if-always a question of fact. Hence this question does not deserve to be referred to the High Court.
Q. No. (III)-This question is also a question of appreciation of evidence on record including the statements of U. K. Agarwal and M. K.Agarwal. Therefore, this is also a question of fact and cannot be referred to the High Court.
Q. No. (IV) -This question has been raised by the learned advocates during the course of hearing of the appeal in another garb and is dealt with in para 7 of the impugned order which is reproduced below: 7. We have carefully considered the pleas advanced on both sides.
Firstly we refer to some of the general pleas taken by the learned advocates across the Bar. We have already stated that the plea made by the learned advocate Shri Harjinder Singh that statements of U. K. Agarwal and M. K. Agarwal are void and non est inasmuch as they were accused persons before their statements were recorded by the Customs Officers has not been substantiated by production of an FIR. It is also apparent from record that the Metropolitan Magistrate before whom U. K. Agarwal and M. K. Agarwal were produced by the Police Officers were in connection with a cognizable offence. When the learned Metropolitan Magistrate on application from the Assistant collector, Directorate of Revenue Intelligence directed the custody of the two persons to Directorate of Revenue Intelligence Officers it ipso facto means that the two persons were discharged of their cognizable offence by the learned Magistrate. It cannot, therefore, be said by any stretch of imagination that M. K. Agarwal and U. K. Agarwal were accused of any offence at the time when they were directed to be given to the custody of Directorate of Revenue Intelligence Officers. The Supreme Court in the case of Ramesh Chandra Mehta v. The State of West Bengal under the Act has held as follows: Under the Apt of 1962 (Customs Act, 1962 a formal acusation can only be deemed to be made when a complaint is made before Magistrate competent to try the person guilty of the infraction under Sections 132.2,133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence.
Q. Nos. (V)& (VI)-These are questions of appreciation of fact and determining the quantum of punishment on the basis of the findings arrived at after preciation of the evidence. These are not questions of law.
Q. No. (i)-There is nothing in the language of Section 112(b) of the Customs Act that no penal proceedings can be initiated against a person where the goods liable to confiscation are not available for seizure. Language of Section 112(b) is wide enough to bring within its mischief the acts of a person who has been concerned in any manner with the goods liable to confiscation under Section 111 of the Customs Act. Hence no question of law is involved on the plain language of Section 112(b) ibid. No authority has been cited by the Id. counsel for the applicants.
Q. Nos. (ii) & (v)-Statements of U. K. Agarwal and M. K. Agarwal have been rightly relied upon as referred to in the impugned order on the authority of Kerala High Court's judgment in the case of Kolatra Abbas Haji v. Government of India Various citations relied upon by both the learned advocates (Shri N. C. Chawla for Raj Kishore Gupta and Shri K. B. Basu for Raghunandan Jalan) are not relevant inasmuch as all those citations relate to prosecution proceedings in a Court of law in which the rules of evidence under the Indian Evidence Act are strictly applicable. The instant case is one of departmental adjudication which is governed largely by the principles of natural justice and not by the strict rules of Indian Evidence Act. This is a settled proposition of law.
Therefore, the (following citations relied upon by the learned advocates: are not relevant for the purpose of these proceedings. No question of law, therefore, as aforesaid arises in this case.
Q. Nos. (iii), (iv). (iv), (vii) & (ix)-These are all questions of fact inasmuch as they are all based on the appreciation of evidence on record. Hence cannot be referred to the High Court.
Q. No. (viii)-This question was also raised by the learned advocate for the applicants. The finding of the Tribunal in that respect is as follows: We do not find any merit in the plea of the learned advocate that the show cause notice reads like a foregone conclusion. Had that been so, the appellants would not have been asked to show cause in the manner as has been in para 24 of the show cause notice. While there may be some point that show cause notice could be more appropriately worded but mere drafting error in the show cause notice would not vitiate the proceedings.
while giving the aforesaid finding the judgment of the Calcutta High Court (AIR 1968 Cal. 28) cited by the learned advocate during the count of hearing of the appeal bad also been duly considered. We do not find that there is any question of law involved in this. Hence this question cannot be referred to the High Court.
Q. No. (A)- This question is identical, to question No. (i) raised in the case of O. P. Jalan. On the reason given above, there is no question of law involved herein for reference to the High Court.
Q. No. (B)- It is not correct to urge that initiation of proceeding and framing of charge of alleged contravention of provisions of Customs Act was on the basis of uncorroborated statement of an accomplice after he had retracted the same and the accomplice being not available for service of the, show cause notice even. There are other facts and circumstances as brought out in the show cause notice and upheld by the impugned order which prove the charges against the applicant. Hence the question is essentially a question of fact based on appreciation of evidence and therefore, cannot be referred to the High Court.
Q. No. (C)-This is also a question of fact inasmuch as it is a question of appreciation of evidence based on the statement of U. K. Agarwal about the delivery of the gold and the amount of Indian currency received by him as sale proceeds of gold delivered by him during his stay in Delhi at that time.
Q. No. (D) -This question corresponds to Q. No. (v) raised by O. P.Jalan which has already been dealt with above. Hence this question is also not required to be referred.
Q. No. (E) -It has raised a question of appreciation of evidence and therefore, it is question of fact. Hence not required to be referred to the High Court.
Q. No. (F)-This is again a question of appreciation of overall evidence; Facts and circumstances as available in the case of Vinod Bansal were not available in the case of Raghunandan Jalan. Being a question of fact it is not required to be referred to the High Court.
Q. No. (G)-This corresponds to Q. No. (viii) raised by O. P. Jalan. The comments as made there would be applicable in this case too. Hence is not required to be referred to the High Court.
Q. No. (H)-This is also a question of appreciation of evidence. This it is a question of fact. Statement of Raghunandan Jalan cannot be seen in isolation; other facts and circumstances as referred to in the Tribunal's order and the Collector's order have also to be taken into account.
Q. No. (1)-This question is vague. It is not understood in what manner the violation of principles of natural justice is involved in this case. The question of non-application of mind by the adjudicating authority is also incorrect in view of his reasoned discussion and findings on the question of penalty imposed upon the applicant.