TMI Blog2015 (3) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Chowk area who legitimately dealt in silk no doubt is a circumstance which has to be borne in mind. However, we notice that when confronted with the telephone numbers, either there was denial or refusal to answer the queries of the investigators. In these circumstances, given the nature of the materials which were otherwise established, painstakingly collected evidence such as movement of trucks etc. and the statement of transporters of certain commodities, it cannot be said that the findings of guilt recorded by the Commissioner against the appellants were given in the absence of sufficient evidence. - that no substantial question of law arises - Decided against assessees. - CUSAA 24 to 30 2014 - - - Dated:- 20-3-2015 - S. Ravindra Bhat And R. K. Gauba,JJ. For the Appellant : Mr. Shailendra Bhardwaj and Mrs. Aroma S Bhardwaj, Advs. For the Respondent : Mr. Satish Kumar, sr. standing counsel ORDER Mr. Justice S. Ravindra Bhat (Open Court) 1. In these appeals the grievance articulated is in respect of order dated 22.10.2013. It appears that the previous order of the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offenders i.e. smugglers of the prohibited articles, but also those part of the conspiracy, such as customs officers and the receivers/traders. The Commissioner discussed the statements, the call detail records in respect of each of the noticees and in his adjudication order, made a detailed analysis in charts and tables for the sake of convenience to link the role of each of the noticees. Some noticees were exonerated whereas in respect of the others guilt was established. The findings in respect of the present appellants were summarized as follows : 546. The show cause notice has also been issued to 8 persons (Noticee No. 26 to 33) alleging that these noticees were involved in knowingly acquiring, possession, dealing or selling of smuggled silk textiles rendering them liable for penal action under Section 112(b) of the Customs Act, 1962. These 8 persons are, namely, Nitish Kedia @ Bunty, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Mahender Jain, Sanjiv Jain Anudeep Singh, all traders of textiles operating in Chandni Chowk, Nai Sarak Model Town areas. The evidence against these noticees is analyzed as below: (i) Abdul Qahar, an Afghan National, who used to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er group to these traders is clear and unambiguous that the traders were aware of the illegal activities of Olga K. and her associates. Let us now examine whether any evidence exist to support this testimony of Abdul Qahar. In this regard, the examination and evaluation of the telephonic conversation records as available in the Table No.10 11 may shed some light on the situation. For example, it can be seen that all the 8 noticees were regularly in touch with Mamoor Khan and Dil Agha on their Mobile No.9811135921 and 9811065897 respectively. The number of calls exchanged is indeed very large and runs into hundred of calls, if taken together as evident from Table No.10. The noticees have not denied these telephonic conversations and they have indeed in many cases even accepted dealing with Khan for purchase of silk textiles. The significance of Table No.11 which shows that these traders were in touch with Mamoor Khan, Dil Agha and passengers on the date when they actually arrived in India with their heavy baggage. For example, when Olga K. and Shakista K. arrived by HY-151 at 12.51 PM on 27th Feb., 2000, 7 conversations took place between Sanjeev Jain and Mamoor Khan between 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f details linking them with those involved in the smuggling racket were sufficient to establish their guilt. The relevant findings in this regard - which are similar, if not identical, are extracted below : 12.5 Revenue led cogent evidence against the deals of the appellant which remained un-rebutted except technical pleas raised on flimsy grounds. Evidence gathered by Revenue were not more piece of papers but well founded and stand to reason. Even statement recorded from Dil Agha whowas produced before Metropolitan Magistrate on 16.07.2001 self speak appellant's active role in abetment of disposal of the smuggled goods knowing character thereof. He could not go out of the mess of smuggling racket having frequent telephonic contacts with them before and after of smuggled goods into India. His proximity to the offence was so nearer he could not remain far from the deal. He failed to state the reason why such contacts were made by him and why racketeer contacted him by phone. 12.6 It would be appreciated that no would prefer to make unwanted calls by his mobile to a stranger unless he knows the person to whom he called frequently shall fulfill his object. There was nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of investigation to appreciate malafide of the appellant being in association with the smuggling racket and being familiar with the offending goods. As has been held in the case of Radha Kishan Bhatia v. UOI- 2004 (178) ELT 8 (SC) that it is immaterial what meaning be attributed to the word 'concerned'. It can have the meaning 'interested' and it may also have the meaning interested and it may also have the meaning involved or engaged or mixed up . 12.9 Appellant's interest in the smuggled goods could not be ruled out when credible statements of Abdul Qahar, Wali and Dil Agha recorded by investigation discovered truth of the deals. Their statements remained unrebutted, unwarranting their cross-examination following the ratio laid down in the case of Surjeet Singh Chbabra v. UOI - 1997 (89) ELT 646 (SC.). Similarly, as has been held in the case of K. T. M. S. Mohammed and Others UOI - 1992 sec (3) 178 that merely because a statement is retracted that cannot be said to be involuntary or unlawfully extracted. It is for the maker thereof who alleges inducement, threat and promise etc to establish that such improper means has been adapted to. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory mandate of Section 111, the revenue had to necessarily prove that each of the appellants knew that they were dealing in smuggling goods- an element which according to him had not been established in the facts of the case. The said learned Member was also of the opinion that the call details ipso facto could not be sufficient to prove culpability. In view of this divergence of opinion, the matter was referred for the opinion of the third member. Sh. Sahib Singh in his order - extracted in para 32 of the common order in this case - noticed the statements of Abdul Qahar, Mamoor Khan, Dil Agha, Valichko and in the light of the statements made by some of the present appellants agreed with the order of Sh. D N Panda. As a consequence, the order of the Commissioner was upheld with a modification i.e. reduction of penalty from ₹ 5 lakhs to ₹ 2.2 lakhs. 7. The learned counsel urged that this Court should take note of the fact that CESTAT ignored the material circumstance that a cross-examination was denied to the appellants in respect of statements of witnesses who had deposed against them and (b) that the materials relied upon by them, on taking a cumulative view, could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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