TMI Blog2015 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... to one Sri Ram Avatar Singhal and that a suit for eviction was filed by his brother; was not found supported by any evidence. No document could be produced by the appellant that the silver seized was validly imported. - The burden to prove that the 79 silver ingots of foreign origin recovered from the premises of the appellant were not smuggled goods, was on the appellant since it was seized from the premises in possession of the appellant. The appellants have completely failed to prove that the aforesaid seized silver was not smuggled goods. Levy of penalty for improper importation of silver by the appellant as well as confiscation of the silver are wholly justified. The penalty was imposed by the Commissioner, Customs under Section 112 (b) of the Act on consideration of the relevant materials and evidences on record and after following the principles of natural justice. - Decided against the appellant. - CENTRAL EXCISE APPEAL No. - 88 of 2006 - - - Dated:- 14-7-2015 - Tarun Agarwala And Surya Prakash Kesarwani, JJ For the Petitioner :- Amit Jaitly,Bharatji Agarwal,Piyush Agrawal For the Respondent : - A.S.G.,R.C.Shukla ORDER Per: Surya Prakash Kesar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks was intercepted at about 4.30 p.m. near Lal Kuan Ghaziabad by the officers of DRI and 25 silver bricks were recovered. This vehicle was being driven by one Ram Kumar Kashyap and one Sri Jagdish Shanker Trivedi alias 'Jiga Ji' was found travelling in it. On the basis of clue given by the aforesaid Sri Ram Kishor Mishra during inquiry, a team of officers was deputed to further search the buffalo shed/Doodh Ki dairy of the appellant at Poney Road, Jhandey Wala Chaurah, Bramh Nagar, Shukla Ganj, Unnao. On 18.12.1992 officers visisted the said place and the search warrant was executed upon Sri Om Prakash son of Sri Laxman Prasad who was an employee of the appellant in his 'doodh ki dairy'. The aforesaid employee of the appellant in presence of two independent witnesses disclosed that the appellant regularly used to visit the dairy and had concealed something in the ground which he some times took out and carried in his car. He showed the spot in the premises of the dairy of the appellant. The officers got the earth dug up at the place shown by the aforesaid employee of the appellant in presence of panch witnesses and after digging a trench of about four feet, they re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nao and for that reason he was implicated. 7. After considering the relevant material and evidences on record the Commissioner of Customs recorded a finding of fact that 79 silver bricks of foreign origin recovered from the doodh ki dairy of the appellant at Unnao were jointly owned by the appellant and his two brothers which were illegally imported into India in contravention of the prohibition imposed on the import of silver. No documents were presented regarding their proper importation. He also recorded a finding of fact that the burden under Section 123 of the Customs Act with regard to 79 silver bricks to be not smuggled, was not discharged by the appellant. Consequently he confiscated the silver under Section 111 (d) of the Act and imposed penalty of ₹ 2.5 crore on the appellant under Section 112 (b) of the Act. He also came to the conclusion that the appellant was the master mind who operated the network of smuggled silver and was involved in possessing the smuggled silver. 8. Aggrieved with the aforesaid order in original dated 4.8.1999 passed by the Assistant Commissioner, Customs Central Excise, Kanpur, the appellant and four others filed separate appeals b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements were taken thrice on different dates and at different places and once under judicial custody in jail, on 18.12.1992, 19.12.1992, 20.12.1992 and 3.1.1993 and the question of coercion or duress could not be believed and, that the retractions would appear to be an after thought. Moreover, there was consistency in the statements initially given by different persons. As regards Ram Avatar Singhal, the leaned Commissioner held that he was the owner of the refinery of M/s Ram Avatar Naresh Kumar engaged in the melting and reshaping of foreign marked silver at the behest of Ashish Kumar Chaurasia and it was evident from the various statements of his own and the statement of Ram Kishore Mishra, Ram Bilas Mandal, Jagdish Shanker Trivedi and Ram Kumar Kashyap that a kind of arrangement was made between him and Ashish Kumar Chaurasia alias pappu doodhwala for melting of silver in his refinery which he used to be sent to Delhi for disposal. He had admittd that the foreign marked silver bricks for melting purposes and sale was supplied by Ashish Kumar Chaurasia. As regards Ram Kumar Mishra (a friend of Ram Avatar Singhal) who was apprehended on 18.12.1992 with 25 silver slabs concealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of their statements being recorded under duress, because as noted above, on 18.12.1992 when two vehicles were intercepted at two distant places namely at Kanpur and Ghaziabad near Delhi, statements of four different persons were recorded by different sets of officers reflected the involvement of the same persons including the appellant, Ashish Kumar Chaurasia, and there was no possibility of the same story being cooked up at two different places by the department. The drivers of the two vehicles had no enmity against the appellant Ashish Kumar Chaurasia, or the appellant Ram Avatar Singhal and their version, whowing the involvement of Ashish Kumar Chaurasia as the person who kept the silver ingots of foreign origin concealed in his premises and giving them to Ram Avatar Singhal for melting and disposing them of, has a ring of truth. If statements were recorded under compulsion and duress at two different places by two different sets of officers, when two vehicles carrying contraband silver were intercepted there would hardly be any scope for the same persons being involved. Jagdish Shanker Trivedi was a lawyer by profession and he would have not given any statement under pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the petitioner and, therefore, there was no need to call panch witnesses for cross-examination of the witnesses. Therefore, so far as the appellants whose statements were recorded under Section 108 of the said Act and who had clearly confessed to their involvement, there would be no violation of the principles of natural justice as the witnesses were not required to be produced for cross-examination of the witnesses on the aspects which were confessed by them. In the present case, even after the retraction, there have been statements, recorded on 3.1.1993 amounting to confessions. 9. As noted above, all the noticees including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employees of the appellant Ashish Kumar Chaurasia and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justices. 10. The appellant Ram Avatar Singhal was in the business of melting silver and was a jeweller. He, in his statement recorded on 19.12.1992, has admitted that he was a partner along with his nephew, Dilip Kumar Singhal in the firm of M/s Ram Avatar Naresh Kumar. He stated that Ashish Kumar Chaurasia was a friend of his nephew and that he knew him well since the last 10 years. He also stated that Ashish Kumar Chaurasia was dealing in milk and having a shop. He stated that two months prior to this statement, Ashish Kumar Chaurasia alias pappu, doodhwala had asked him whether he (Ram Avatar Singhal) would melt silver of foreign make that he would bring. Ram Avatar Singhal agreed to do so. Thereafter the appellant Ashish Kumar Chaurasia, as agreed, used to bring silver ingots of foreign make for getting them melted in his refinery for which Ram Avatar Singhal was paid at the rate of ₹ 50/- per kg. He then admitted that after melting such ingots, he used to send them for sale in his vehicles though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective vehicles and the recovery of the contraband silver from their cavities, one at Kanpur and the other at Ghaziabad, which were taken to the respective customs offices for search under Panchnamas. Both the drivers in their statements clearly shows their connection with Ram Avatar Singhal. Ram Kishore Mishra, who was accompanying the maruti van which was intercepted near the railway station at Kanpur had stated that the silver belonged to Ram Avatar Singhal, at whose direction, it was being taken to Delhi. He also told the officers that Ram Avatar Singhal had melted the silver ingots of foreign make and converted them into silver slabs in his refinery, address of which was given. He gave the information that foreign marked silver ingots were concealed in the ground of the premises of the doodh ki dairy owned by Ashish Kumar Chaurasia, alias pappu doodhwala. It is on the basis of this information, the customs officers proceeded to the said dairy farm from where they recovered 79 ingots of silver of foreign make under a panchanama. The panchnama and the statements of panchas vividly described how Om Prakash, the employee of Ashish Kumar Chaurassia pointed out the spot in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was intercepted at ghaziabad. Ram Bilas Mandal was an employee of the appellant Ram Avatar Singhal residing with him and he had no reason to wrongly implicate Ram Avatar Singhal or Ashish Kumar Chaurasia. Driver, Ram Bilas Mandal had known about the place where the silver was concealed in the premises of Ashish Kumar Chaurasia. From his statement also, it transpires that he used to take the contraband silver to Delhi and was at times accompanied by Ram Avatar Singhal, Ashish Kumar Chaurasia, Jagdish Shanker Trivedi alias Jijaji, and Ram Kishore Mishra. He has stated that Ram Kishore Mishra was a friend of Ram Avatar Singhal. Even in the statement recorded on 3.1.1993 Ram Bilas Mandal has admitted that he was driving the vehicle when it was intercepted and that contraband silver was recovered from it. He had stated that he was paid salary by Ram Avatar Singhal and the payment for going to Delhi was separately given by Ashish Kumar Chaurasia, alias Pappu Doodhwala. 12. From the findings of fact recorded by the Tribunal which is the last fact finding authority, it is evident that ample opportunity was afforded to the appellant during the course of adjudication proceeding. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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