Home Case Index All Cases Customs Customs + AT Customs - 2020 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 71 - CESTAT MUMBAILevy of Penalty u/s 114(i) of the Customs Act 1962 - Smuggling - Red Sanders - retraction of statements - preponderance of probability - HELD THAT:- The statements have been recorded under Section 108 of the Customs Act, 1962 and the provisions thereof have been explained to the appellants and the retractions are held to be an afterthought. Therefore, the statements of the appellants and those of the co-accused have evidentiary value in the proceedings before us. We find that the appellants have also taken a plea that the CBI has not found any evidence to proceed against them and have not filed any FIR against them and therefore, the proceedings against them under Customs Act also need to be discharged. The proceedings under CrPC and proceedings under Customs Act, 1962 are on a different footing. The standard of proof in a criminal proceeding is proof beyond doubt whereas in the adjudication proceedings, the standard of proof is preponderance of probability. The role of Shri Mohammad Altaf has been established with a reasonable degree of evidence so as to establish the offence under Customs Act, 1962 in adjudication proceedings. We find that Shri Mohammad Altaf has involved himself in the act of smuggling of red sanders. Ongoing through the facts of the case, we are convinced that Shri Mohammad Altaf has played a pivotal role in the smuggling of red sanders. He has not only negotiated with the suppliers, the middleman, the exporters and the logistics persons in the export of red sanders but also has invested certain amount in the business - The Advocate representing Shri Mohammad Altaf pleaded that there is some discrepancy in the amount stated to have been invested by Shri Altaf. Shri Altaf is alleged to have invested ₹ 50, 00, 000/- as per his own statement whereas Shri Meghani reported the same to be ₹ 12, 50,000/-. However, this goes to prove that Shri Mohammad Altaf has invested certain amount with a view to have pecuniary gain in the business. The retractions made by Shri Altaf have no substance and have been rightly held to be an afterthought by the Adjudicating Authority. The role played by Shri Mohammad Altaf is evident in the case and looking into the fact that he is a responsible officer of the Customs Department, entrusted with the responsibility of curbing smuggling activities, we find that the appellant has not made out any case for proving the allegations to be wrong and baseless. It is a clear case of the fence eating the crop and therefore, need to be treated with circumspection - the investigation has to a reasonable extent came out with evidence that can be analysed and accepted on the principles of preponderance of probability - the penalty imposed on Shri Mohammad Altaf, under Section 114 (i) of Customs Act, 1962, is upheld, but quantum is reduced. The other appellant Shri Ali Imran Shafiullah Khan, had a role in tampering with the seals and loading that container with red sanders with the help of Dilip (Deepak Joshi),Sheru, Nayan Singh (driver arranged by Sheru) and Arif. It has not been brought on record as to the amount of financial benefit that accrued to the appellant. Under the circumstances, we find that penalty of ₹ 25, 00,000/- imposed on Shri Ali Imran Shafiullah Khan is on the higher side. While finding that the role played by Shri Khan is brought out with reasonable evidence, we are inclined to reduce the penalty to ₹ 5, 00,000/-. Other pleas not considered. Appeal allowed in part.
|