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Customs - Case Laws
Showing 101 to 120 of 154 Records
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2014 (12) TMI 573 - ANDHRA PRADESH HIGH COURT
Drawback – Conversion of free shipping bills to drawback shipping bills – Soya bean meal exported and drawback cannot claimed due to ignorance of its entitlement - entitlement to 1% All Industry Rate drawback requested for conversion of the free shipping bills into drawback shipping bills - High Court following decision of [2014 (2) TMI 446 - ANDHRA PRADESH HIGH COURT] allowed appeal of Revenue against the decision of Tribunal in [2009 (12) TMI 560 - CESTAT, BANGALORE] wherein Tribunal held that appellants' case is covered by the said Rule 12(1)(a) of the Drawback Rules - Commissioner erred in holding that its failure to file a drawback shipping bill owing to ignorance of its entitlement is not a reason beyond the control of the exporter.
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2014 (12) TMI 572 - GOVERNMENT OF INDIA
Import of Baggage - Import of dutiable goods, fake watches and 6 cartons of Cigarettes - Imposition of redemption fine & penalty - Violation of Copyright Act, 1957 and IPR Regulation of India Baggage Rules, 1998, Sections 77, 79, 11 of Customs Act, 1962, para 2.20 of FTP 2009-2014 and also the provision of Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 - Now in this revision application the applicant has pleaded to release the wrist watches on payment of redemption fine for home consumption or re-export. The applicant has contended that the wrist watches were not fake but manufactured in China hence may be released.
Held that:- Applicant in his statement recorded under Section 108 of Customs Act, 1962 has admitted the wrist watches were fake. Import of duplicate or fake goods are prohibited under the provision of Indian Copyright Act, 1957 and IPR Regulation. Keeping in view the above circumstances, there is no merit in the pleading of the applicant. Government do not find any infirmity in the impugned Order-in-Appeal and therefore upholds the same. - Decided against the assessee.
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2014 (12) TMI 532 - CESTAT MUMBAI
Exemption from anti-dumping duty - warehoused goods - import of Phosphoric Acid - Notification 24/2013 dated 18.04.2013 - whether exemption from safeguard duty and anti dumping duty will be available or not in the case of material imported against duty-free import authorisation made transferable by the licensing authority when the goods were sought to be cleared on 09/05/2013 from the warehouse - Difference of opinion - Majority order - Held that:- Appellant filed ex-bond Bill of Entry on 09/05/2013 for clearance of the goods from the warehouse. The clearance was sought to be effected under the DFIA which was transferred to the appellant on 09/04/2013. As per Section 15(1)(c) of the Customs Act, 1962, the date for determination of rate of duty and tariff value of imported goods in the case of goods cleared from a warehouse under Section 68 is the date on which the bill of entry for home consumption in respect of such goods is presented under that Section. Therefore, in the present case, the rate of duty that would apply is the rate prevalent on 09/05/2013 when the Bill of Entry for home consumption was filed. On that date when the bill of entry was filed, Notification 98/2009 clearly stated that the exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation made transferable by the regional authority. The said Notification does not stipulate on what date the authorisation should have been made transferable. In the absence of any specific mentioning of the date as to when the transferability should have been made, there is no merit in the contention of the appellant that the Notification stipulates 18/04/2013 as the date on which the authorisation should have been transferable.
Since the wordings of the Notification are clear and unambiguous, no extra support or aid is required for interpreting the Notification. In this view of the matter, I am of the view that the appellant is not eligible for the benefit of exemption from safeguard duty and anti dumping duty in respect of ex-bond bill of entry filed on 09/05/2013 - Decided against assessee.
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2014 (12) TMI 531 - CESTAT KOLKATA
Revocation of CHA License - Fraudulent exports under claim of export incentives - forfeiture of security deposit - Failure to obtain an authorization from his client for the job of clearance of import and export cargo and to ensure proper conduct of his employee in the transaction of business as Agent - Violation of Regulation 20 of CHALR, 2004 - Held that:- CHA is required to obtain an authorization from his client for the job of clearance of import and export cargo and that he is also required to ensure proper conduct of his employee in the transaction of business as Agent. As against this, the CHA failed to observe the above condition and therefore, is liable for the action under Regulation 20 of CHALR, 2004 - Export documents were not signed by the exporter. The invoice list and the packing list on the basis of which shipping bills were filed, were not received by the CHA from the exporter but from a third person, namely, Shri Arup Kumar Mukherjee. As no authorization could be produced by the Appellant CHA from the exporter, we hold that the charges of violation of Regulation 13 (a) are proved.
Employee has been doing the job of clearance on instructions from the exporter during the course of his employment and therefore, keeping in mind the ratio laid down in case of Worldwide Cargo (2006 (11) TMI 281 - BOMBAY HIGH COURT), we are of the view that the principles of vicarious liability of the master will certainly apply. Accordingly, the charges of violation of Regulation 19 (8) are also proved.
Act provides for two types of action i.e. (i) for imposition of aiding and abetting the importer/exporter in smuggling of the goods, (ii) and the other action is contemplated under CHALR. As such merely on the ground that the ld. Commissioner set aside the penalty, is not a ground alone for quashing the order or revocation when the CHA has been found to indulge in gross misconduct and contravening the various provisions of Regulation under CHALR, 2004.
Commissioner has rightly revoked the CHA licence and forfeiture of their security deposit. The said decision having been arrived at by the ld.Commissioner after taking into consideration all relevant materials and the said Regulation and after following the due process of law, it could not be said that the said decision of the revocation of licence was unreasonable or the punishment dehors the doctrine of proportionality. The Appellant has failed to point out any perversity or unreasonableness of the part of the Adjudicating Authority, and therefore, we do not find any merit in the present appeal - Decided against applicant.
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2014 (12) TMI 530 - MADRAS HIGH COURT
Denial of refund claim - Whether the respondent/importer is automatically entitled to refund claim solely on the ground that provision for unjust enrichment was incorporated under Section 18 of the Customs Act, 1962 with effect from 14-7-2006 and in the instant case, the provisional assessment having been finalised prior to the date of insertion of the said provision - Held that:- In the case of provisional assessments made and thereafterwards, it results in a refund, even in the absence of a provision of refund, if an assessee has to claim as refund, under equity, he must prove that there is no unjust enrichment and that the liability had not been passed on to the customer. That being the case, refund is not automatic one merely on the score of provisional assessment being followed by final assessment and unless and until the assessee substantiates the claim backed by the proof that the liability has not been passed on to the customer, such a refund claim may be termed as unjust and the claim cannot be granted as a mere consequence for refund arising on final assessment.
When the assessee admits that provisional assessment was followed by a finalisation of assessment being finalised, under Section 27 of the Customs Act - any refund question arising thereon must be subject to proof of not passing on the burden of duty to others. Thus, in the absence of equity i.e., unless the assessee establishes that he has not passed on the burden of duty to another, he would not be entitled to refund as pointed out by the decision in the case of Mafatlal Industries Ltd., (1996 (12) TMI 50 - SUPREME COURT OF INDIA). Even in equity, the assessee is bound to substantiate its claim by showing bona fide that the payment of duty and claim not backed by unjust enrichment and the duty has not passed on to the customer, but it was borne out by the assessee only. - Matter remanded back - Decided in favour of Revenue.
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2014 (12) TMI 529 - BOMBAY HIGH COURT
Attachment of residential properties of director of company - Petitioners are the Directors of two Companies - Revenue writes to the Secretary of Cooperative Housing Society in which the Petitioners have residential flats and to the Secretary of Soni Chambers wherein the Petitioners as Directors of two Companies are having their office, informing that for protecting interest of the Revenue, three immovable properties mentioned in the said communications should not be sold, transferred or leased out in any manner without written No Objection Certificate from the Directorate of Revenue Intelligence.
Held that:- A bare perusal of Section 28BA would indicate that if any proceeding is pending under Section 28 or Section 28AAA or Section 28B, the proper officer must record the opinion that for the purpose of protecting the interest of revenue it is necessary so to do, with previous approval of the Commissioner of Customs that he makes an order in writing for provisionally attaching any property belonging to the person on whom a notice is served under sub-section (1) of Section 28 or sub-section (3) of Section 28AAA or sub-section (2) of Section 28B, as the case may be, in accordance with the rules made in this behalf under Section 142. The provisional attachment shall cease to have effect after the expiry of six months period from the order under sub-section (1). The expectation is that within this period the proceedings be concluded and the liability or duty amount is crystallized. Even if Section 110 of the Customs Act, 1962 has to be resorted, there is something which is required to be recorded.
In the present case, merely addressing such communications and insisting on No Objection Certificate of the Department before the immovable properties are transferred, does not come within the ambit and scope of this provision - Decided in favour of assessee.
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2014 (12) TMI 528 - BOMBAY HIGH COURT
Application for extension of time to bring the vessel SEAMEC-III to India - Vessel taken out of India for repairs - Held that:- Normally no exception could be taken to the impugned order dated 28 October, 2013. However, in view of the peculiar facts viz. as opportunity to gainfully employ the vessel SEAMAC-III in Dubai was found post its repairs and otherwise the vessel would have been idle till the end of November when it would be gainfully employed in India extension of time was sought. The application for extension of time was also made to the Tribunal before 30 September, 2013. Taking all the above facts into account we are interfering with the order of the Tribunal and extending the time limit to bring the vessel SEAMEC-III to India. Learned Counsel under the instructions of Mr. S.L. Mohanty, Chief Legal Officer of the petitioner undertakes that the petitioner will bring the vessel back to India by 30 December, 2013 and shall also pay all the applicable duties and taxes for re-entry/re-import of the subject vessel and shall comply with all other legal requirements. Extension of the time for bringing the subject vessel SEAMAC-III back to India granted.
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2014 (12) TMI 527 - MADRAS HIGH COURT
Misdeclaration of goods - import of RBD Palmolein Oil (edible grade) - consignment did not conform to the standards - Confiscation of goods - Redemption fine & penalty - Wrong description of goods - Held that:- reply given by the suppliers on 11-3-1999, as regards the mistake committed by the filling point staff is only an afterthought as the same having been given long after the test conducted by the Port Authorities. If the supplier had found the same even before the point of dispatch, nothing prevented them from informing the Importer about the mistakes committed. No justification to interfere with the order passed by the Customs, Excise and Service Tax Appellate Tribunal - Decided against assessee.
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2014 (12) TMI 488 - BOMBAY HIGH COURT
Import of Processed Natural Limestone under EPCG scheme - Benefit under Notification No.103/2009-Cus - revenue alleged that the goods were restricted for import in terms of the Foreign Trade Policy in force. - Confiscation of goods u/s 111(d) - Penalty u/s 112(a) - Wrong classification of goods - Held that:- There is no application of mind on the part of the Tribunal. - A very vital and material contention is raised on behalf of the Respondent and which is tried to be supported by producing number of documents including the relevant Notification. If the Tribunal is last fact finding authority and was dealing with a statutory Appeal, we would expect it not to dispose of the same by a cryptic and short order, more particularly, when such vital contentions have been raised as would have a material bearing on the outcome of the Appeal. It would also have some bearing on the pending cases.
Customs Tariff Heading No.68022900 under which the goods are classifiable, then, whether there is any restriction in terms of the applicable policies or not ought to have been examined. Whether, the Commissioner was right in making a reference to the Customs Tariff Heading 68022200 should have been then considered. If that was permissible, the Tribunal was obliged to not only make a reference to the relevant findings of the Commissioner to uphold them in their entirety or otherwise. If these findings were not tenable as urged on behalf of the Respondent/original Appellant, then, the Tribunal should have held accordingly. We do not find any discussion much less a conclusive finding on this aspect of the matter. Resultantly, we are constrained to quash and set aside the impugned order on this short ground alone. - Decided in favour of Revenue.
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2014 (12) TMI 487 - GUJARAT HIGH COURT
Reward for providing information - Information providing for cases where raid conducted and proceedings initiated - Held that:- out of five cases, in two cases the matters are remanded to the adjudicating authority by CESTAT and in one case the adjudication proceedings is still pending. It also appears that so far as two other cases are concerned the Units are closed and non-working since long and in one case the Department has already attached the property on 21-2-2008. However, GIIC in the case of M/s. Shivani Sizers Pvt. Ltd. has claimed that the Unit is under possession of GIIC. In view of this, as such, it will not be possible at this stage to ascertain the amount of reward, if any, due and payable to the petitioner - Appropriate authority directed to adjudicate the respective cases i.e. in the case of M/s. Mudra Texturising Pvt. Ltd., Surat; M/s. Chandralon Texurising Pvt. Ltd., Surat and M/s. Goyani Textiles, Surat and conclude the adjudication proceedings and pass an appropriate order/final order of adjudication in accordance with law and on its own merits at the earliest. - Application disposed of.
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2014 (12) TMI 485 - MADRAS HIGH COURT
Confiscation of goods - Redemption fine - Penalty u/s 112 - Held that:- Court on a perusal of the facts of the said case found that the essential ingredients of Section 112 of the Customs Act have not been specifically spelt out either under clause (a) or (b) of Section 112 of the Customs Act - show cause notice elaborately discussed the role played by the appellant. Therefore, merely because the show cause notice does not mention Section 112(b) but mentioned Section 112(a) of the Customs Act, would not vitiate the entire proceedings; more so when the ingredient found place in the show cause notice and non-mentioning of the specific clause of the Customs Act will not vitiate the details mentioned in the show cause notice in clear terms. Hence, considering the above factual position, we find no ground to entertain the Civil Miscellaneous Appeal. Accordingly, the appeal fails and same stands dismissed - Decided against assessee.
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2014 (12) TMI 484 - BOMBAY HIGH COURT
Revocation of CHA licence under Regulation 22(7) of CHALR, 2004. - On a complaint made by a person it comes to notice that appellant, appearing for Regulation 8, Examination of CHALR, 2004 is failed in SSC examination and the graduation certificate submitted by him is bogus/fake and matter was referred to CIU, it is stated that the CHA, deliberately made false statements under Section 108 of the Customs Act, 1962 the CHA squarely failed to discharge their obligation under Regulation 13(n) read with Regulation 19(8) of CHALR, 2004 and merits immediate suspension and even revocation of CHA licence - Tribunal set aside revocation order - Held that:- Tribunal has relied upon a view taken by this Court earlier [2010 (1) TMI 955 - BOMBAY HIGH COURT] and which has now been expressly overruled. Therefore, it was open for the Commissioner to have disagreed with the Enquiry Officer. All that he has to comply with are the principles of natural justice and before taking any view, he should have heard the Customs House Agent. He should have given him an opportunity to substantiate and prove his defence. It is not therefore the correct proposition of law that the Commissioner was not empowered to disagree with the Enquiry Officer. Ordinarily therefore the Tribunal’s order would be required to be set aside and the matter relegated to the Commissioner from the stage at which he received the enquiry report. The Commissioner, having disagreed with the findings and conclusions in the enquiry report, should have been permitted to issue show cause notice calling upon the respondent to show cause as to why Enquiry Officer’s report should not be rejected and the charges held not to be proved. The Commissioner could have then also called upon the respondent to furnish his explanation on the proposed punishment.
Tribunal’s order is not in accordance with law laid down in the Larger Bench decision of this Court but finding that the incident is very old, no useful purpose will be served by permitting the Commissioner to reopen the enquiry and proceed from the stage noted above. Having found that the only lapse was forwarding a certificate in relation to graduation of the son of the partner of the respondent, we are of the opinion that the chapter be closed, particularly when the licence was suspended for about 20 months. The father of Mehul Boda had not assisted the son in proving and submitting an alleged bogus Certificate. The allegations are against the son, who was an employee of the respondent. The son having been disassociated completely now from the business of the respondent firm, so also the partner of the respondent giving an undertaking to this Court which is accepted in the facts and circumstances peculiar to this case, while allowing the appeal, quashing and setting aside the order of the Tribunal instead of restoring the matter back to the Commissioner, we direct as above. We therefore direct that there shall be no penalty save and except suspending of the licence which was already so suspended for 20 months, but now stands restored in the light of the order of the Tribunal. In addition, we direct that the security deposit which was furnished earlier will stand forfeited. The respondent shall furnish fresh security deposit in terms of the applicable Regulations. - Decided partly in favour of Revenue.
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2014 (12) TMI 446 - MADRAS HIGH COURT
Confiscation of the goods - Imposition of redemption fine & penalty - Was the Hon'ble Tribunal correct in holding in the appeal preferred by the appellant that the duty demanded is upheld when actually the duty was not demanded even in the order in original - Held that:- Original authority did not confirm the demand though he held that it was payable, in view of the fact that show cause notice was issued after a period of five years from the relevant date. However, the original authority imposed redemption fine of ₹ 2,77,284/- and penalty of ₹ 10,000/-. It is also pertinent to note that the department did not file appeal against the order of adjudication passed by the original authority to the Commissioner (Appeals). Therefore, there is no claim before the Tribunal on the question of demand of duty. The question of the Tribunal upholding the demand of duty does not arise. Since the Department has not chosen to file any appeal before the Tribunal as well as before this Court, to that extent, the appellant appeal deserves to be given the benefit of no duty liability by modification of the order of the Tribunal, in the absence of a demand for duty by the original authority. In such view of the matter, the impugned order passed by the Tribunal deserves to be set aside. Accordingly, substantial questions of law 3 and 4 are answered in favour of the appellant/importer and against the Revenue. - Decidedin favour of assessee.
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2014 (12) TMI 445 - MADRAS HIGH COURT
Condonation of delay - Whether the dismissal order passed by the Appellate Tribunal in the miscellaneous petition filed for condoning the delay of 30 days in filing an appeal against the order dated 28-6-2005 passed in Appeal No. 119-2005-TTN(CUS)(ADK)) is correct or not - Held that:- there is no inhibition in the concerned section for constituting a fresh Review Committee for taking decision afresh which has already been decided and since the petition in question is only for condoning the delay of 30 days, this Court is of the view that the order passed by the Appellate Tribunal is liable to be set aside and the substantial questions of law settled in the present Civil Miscellaneous Appeal are really having substance - Decided in favour of Revenue.
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2014 (12) TMI 444 - MADRAS HIGH COURT
Remission of duty - Lost goods - Denial on the ground that many transactions, viz. sale, transfer from tank to tank and re-export, have taken place on different dates and therefore, it was difficult for the supervising officers to exactly pin point the exact quantity involved in such transactions and further, it was stated that there was always a possibility of oil remaining in the pipeline during the Preventive officer’s inspection which could have been brought to the notice subsequently - Tribunal allowed remission of duty - Whether the Tribunal had committed an error of law in holding that the Tribunal has also examined the provisions of Section 23 of Customs Act that it is against the provisions embedded in Customs Act - Held that:- In that process, there appears to have been a loss of 51.971 M.Ts. which works out to 0.58% of the total quantity imported. When the importer made a request to the department claiming remission, the authorities did not dispute the transactions narrated above. In fact, in their reply dated 14-8-2002, they have admitted all the transactions and had also stated that it is difficult for the supervising officer to exactly pin point the quantity precisely as there is always a possibility of oil remaining in the pipeline during the Preventive Officer’s inspection. Tribunal, after considering the factual situation, was satisfied that the explanation given by the importer was reasonable and appropriate. Thus, taking note of the factual findings recorded by the Tribunal, we find no ground to interfere with the said order - Decided against Revenue.
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2014 (12) TMI 443 - MADRAS HIGH COURT
Interest on delayed refund - Refund of CVD paid despite exemption notification – unjust enrichment - whether the first respondent/assessee is entitled to claim interest from the date of application with regard to the amount which is refundable - Held that:- Even from a mere reading of the said Section, it is easily discernible that refund of excess duty should be paid within a period of three months from the date of receipt of an application and if no such refund is made within the stipulated period of three months, the applicant/assessee is entitled to get interest from the date of filing of such application - every application for refund of excess duty has to be considered within a period of three months and the refund should be made within that period and if no such refund is made, the applicant/assessee is entitled to get interest from the date of filing application. Under the said circumstances, in Section 27(A) of the said Act, the words “from the date of receipt of such application” have been used. Therefore, it is quite clear that the residual contention put forth on the side of the appellant cannot be accepted. It has already been pointed out that the Appellate Tribunal, as per the provision of the said Section, has rightly awarded interest and in view of the discussions made earlier, this Court has not found any error in the order passed by the Appellate Tribunal and further the substantial question of law settled on the side of the appellant is not having substance at all and altogether the present civil Miscellaneous Appeal deserves to be dismissed. - Decided against Revenue.
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2014 (12) TMI 403 - KERALA HIGH COURT
Denial of refund claim - Levy of countervailing duty - petitioner had only produced a Chartered Accountant's certificate to substantiate his claim with regard to the absence of unjust enrichment and had not produced any further document to show the absence of unjust enrichment - Held that:- while the 3rd respondent has chosen not to rely on the certificate of the Chartered Accountant produced by the petitioner, it is evident that the petitioner was not given any further opportunity to produce documents to substantiate the correctness of the said certificate, on the 3rd respondent entertaining a doubt regarding the correctness of the said certificate. I am of the view that if the 3rd respondent had any doubt regarding either the genuineness of the certificate or the correctness of the contents therein, it should have informed the petitioner of the same and given the petitioner an opportunity of producing additional documents to substantiate his claim for refund. That procedure not having been adopted by the 3rd respondent, I am of the view that Ext.P10 order passed by him cannot be legally sustained. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 402 - MADRAS HIGH COURT
Detention of goods - Necessary clearance not obtained - Held that:- When a given consignment comprises both offending and non-offending goods, placed separately, it is desirable to release the non offending part of the goods and detain the offending part of the goods for the purpose of initiating adjudication proceeding - The learned counsel while accepting the notice on behalf of the respondent, has submitted that at this stage of the matter, the merits of the case cannot be gone into. But, if sufficient time is granted to the authority, the respondent will consider the petitioner's representation dated 6.11.2014 - respondent is directed to consider the representation of the petitioner dated 6.11.2014 on merits and in accordance with law within a period of three weeks from the date of receipt of a copy of this order. The petitioner is directed to enclose a copy of the representation dated 6.11.2014 along with the copy of this order and submit the same by appearing in person before the respondent. - Writ disposed of.
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2014 (12) TMI 401 - MADRAS HIGH COURT
User of imported Ball Clay in the manufacture of Ceramic core that are captively consumed for the manufacture of Porcelain insulators - Benefit of Notification 25/99 Cus dated 28.2.1999 - Import of ball clay - Captive consumption - concessional rate of duty for the manufacture of excisable goods) Rules, 1996 - Rejection of registration - Held that:- Tribunal has rightly held that the registration obtained by the appellant was for the manufacture of 'electric insulators' and not for the manufacture of 'resistors' nor they claimed that 'resistors' are the same as 'insulators'. It also held that to avail the benefit of concession under the Notification, the appellant should have claimed that the imported ball clay is to be used in the manufacture of 'ceramic cores/substrates for resistors'. Since the appellant had not claimed so, they are not entitled to the benefit of the above entry. In our view, the said findings of the Tribunal are perfectly in order, as the entries in the exemption Notification should be strictly construed. when the Notification clearly provides the benefit of concessional duty only for manufacture of ceramic cores/substrates for resistors, which is not the claim of the appellant, we are not inclined to accept the case of the appellant that ceramic cores are nothing but porcelain insulators. As has been rightly held by the Apex Court [2008 (3) TMI 452 - SUPREME COURT OF INDIA], we are not inclined to read something more into the Notification, which are not found therein. Accordingly, we answer the first substantial question of law in favour of the department and against the assessee.
Tribunal has rightly upheld the order of the original authority for rejecting the application of the appellant for manufacture of porcelain insulator, inasmuch as the porcelain insulator to be manufactured by the appellant is not known in the market / trade parlance as 'ceramic core' and therefore the concessional rate of customs duty cannot be extended to the imported ball clay for the manufacture of porcelain insulator. Accordingly, the second substantial question of law is answered in favour of the department and against the assessee.
Finding of the appellate Commissioner has no relevance to the issue, because the original authority has not granted the benefit of registration for import of ball clay for the manufacture of ceramic cores used in the insulators. If the appellant manufactures ceramic cores, there can be no difficulty in granting the exemption. But what the appellant, in their letter dated 30.10.2003, requested was for import of ball clay for the manufacture of various types of high tension porcelain insulators, which cannot be allowed under the Notification. Therefore the relief was rightly denied by the original authority. However, the first appellate authority, on a misreading of the Notification, relying upon the certificate issued by the Chartered Engineer, wrongly set aside the order of the original authority. In our view, the said error has been rightly corrected by the Tribunal on the facts of this case. Substantial question of law is answered in favour of the department and against the assessee.
If the import of ball clay is used in ceramic core/substrate for resistors, the appellant would be entitled to get the benefit of the Notification and in that case, there is no need to manufacture porcelain insulator. But the appellant is trying to confuse the issue by stating that ceramic core is being captively consumed in the manufacture of porcelain insulator and therefore the import of ball clay should be allowed. The said claim of the appellant cannot be accepted for the reasoning given by the Tribunal. Accordingly, the last substantial question of law is also answered in favour of the department and against the assessee. - Decided against assessee.
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2014 (12) TMI 400 - DELHI HIGH COURT
Conviction u/s 21 of NDPS Act - Intelligence Officer had received a secret information “that a person of Indian origin, would be handing over some narcotic substance to a African person - Nothing incriminating was found in the personal search of the accused - Packet of heroine found in the bag of accused - Appellant forcible made to copy already written statement and sign it - Trial convicted appellant u/s 21(c) of NDPS Act - Held that:- It was impossible for the DRI officers to know in advance, even before the search of the bags, that the accused were in possession of heroin packets. It must be recollected that the secret information reduced to writing (Ex.PW-1/A) only referred to the information that a person of Indian origin would be handing over “some narcotic substance” to a medium built African person. The trial Court appears to have completely overlooked the above glaring lacuna. This shows that the notice under Section 50 NDPS Act could not have possibly been issued prior to commencing the search of the bags as contended by the DRI but much later.
The trial Court also failed to notice another important aspect of the matter regarding the truthfulness of the so-called confessional statement made by the Appellant under Section 67 NDPS Act. The Appellant in both retraction statements, i.e., one dated 20th February 2009 and the subsequent dated 8th December 2010 stated that he had been picked up from his rented house at Patiala. Both the statements of retraction formed part of the record.
Despite repeated reminders by the DRI to the Ministry of External Affairs, High Commission of Nigeria, High Commission of Nigeria, and Qatar Airways (City Office), Mumbai to confirm whether the visa stamp issued by the Indian Commission in Nigeria, no information was forthcoming. Additionally, Mr. Aggrawala placed on record a copy of letter dated 2nd December 2014 received from the Deputy Commissioner of Police, Special Branch-II, CID & FRRO, Mumbai that the name of the Appellant did not figure in the list of registered foreigners at the said office. Computer data showed that the Appellant, a Nigerian national, having the same passport a photocopy of which had been produced by the Appellant, did arrive at Mumbai on 19th October 2009 by Qatar Airways.
Documents which expose the falsehood of the case of the DRI could have been easily verified by the DRI itself. The Court would add that when an accused offers an alternative theory and produces documents in support thereof, the DRI can itself verify their genuineness without waiting for the order of the Court. For an accused in judicial custody, it is only to be expected that it would be difficult for him to produce witnesses. This difficulty is further compounded when the accused is a foreign national. Unfortunately this difficulty was not been appreciated by the trial Court. It unfairly cast the burden on the Appellant to further lead evidence to prove the details of his passport and visas stamps. It may be further added here that according to the Appellant, his original passport was with the Nigerian Embassy in India. The Appellant has been in judicial custody throughout and it is obvious that he does not have his passport with him.
It is surprising that the trial Court overlooked the fact the reports of the IO himself in the case showed that addresses of the two panch witnesses were non-existent. This is very different from the situation where the addresses are correct but the panch witnesses are not available. In such a scenario, it is understandable that after repeated attempts, the DRI was unable to ascertain the whereabouts of such witnesses. However, when the address is shown to be non-existent, then questions arise as to the genuineness of the entire exercise involving the panch witnesses. It must be remembered that the addresses of the panch witnesses are recorded in the panchnama proceeding and notices are served upon them for recording their statements under Section 67 NDPS Act. It is possible that, as explained by Mr. Aggarwala, even during the panchnama proceeding, notices are served upon the panch witnesses and both of them appeared later in this case on 11th February 2011 for recording their statements. It is also possible, as contended by Mr. Aggarwala, that even if the DRI officials could not have insisted at that very moment that the panch witnesses should produce some identity document, it should always be possible for the DRI officials to verify the correctness of the address in the next few days.
No serious attempt in this case was made by the DRI, despite knowing that the address was non-existent, to ascertain the correct present address of the panch witnesses and secure their presence at the trial. 33. The Court is unable to agree with the approach of the trial Court in not drawing adverse inference against the DRI. In a situation where the panch witnesses are unable to be produced, because their addresses are non-existent, it is not sufficient for the DRI to simply drop the panch witnesses and avoid the consequence of an adverse inference being drawn. - record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai.
As explained by the Supreme Court in State of U.P v. Zakaullah (1997 (12) TMI 635 - SUPREME COURT), that a conviction can be based even on the evidence of police officers but the evidence of DRI officers should inspire confidence. In the present case, the record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai.
The Court accordingly, set asides the impugned judgment dated 9th July 2013 and the order on sentence dated 20th July 2013 of the trial Court. The Appellant is hereby acquitted for the offence under Section 21 (c) of NDPS Act. The Appellant will now be released to the FRRO for further steps for deporting him. His bail bond and surety bond will continue for a period of three months in terms of Section 437-A Cr PC. - Decided in favour of appellant.
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