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2015 (11) TMI 592 - ALLAHABAD HIGH COURT

2015 (11) TMI 592 - ALLAHABAD HIGH COURT - 2015 (325) E.L.T. 250 (All.) - Seizure of silver - Smuggling of goods - Whether in a case where adjudication has been done solely on the basis of statement of co-noticee, whose cross-examination has not been allowed, the adjudication can be sustained - Held that:- 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 adjudicatio .....

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not produced him. The story built by the appellant for letting part of the premises of the doodh ki dairy 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 seize .....

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ce. - 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 Kesarwani, J 1. Heard Sri Piyush Agrawal, learned counsel for the appellant and Sri R.C. Shukla, learned counsel for the respondent. This appeal was admitted by order dated 18th April, 2006 on the following substantial qu .....

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2005 passed by the Custom Excise and Services Tax Appellate Tribunal, New Delhi in Appeal No. C-376 of 1999 cannot be sustained and therefore deserves to be set aside. 3. Learned counsel for the respondents submits that the order in original is based on consideration of relevant documentary and other evidences on record. The Tribunal has also considered the evidences and recorded the findings of fact upholding the levy of penalty under Section 112 (b) of the Customs Act, 1962 (hereinafter referr .....

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r Mandhna Railway Station, G.T. Road, Kanpur. The vehicle was being driven by the driver Sri Ram Bilas Mandal and one Ram Mishore Mishra was found travelling in it. 25 foreign mark smuggled sliver ingots of .999 purity weighing 373.365 kgs valued at ₹ 24,82,877.20 were recovered and seized from the said Maruti van. The aforesaid Ram Kishore Mishra admitted that the aforesaid 25 silver ingots recovered from the said Maruti van were smuggled which were concealed in a specially designed cavit .....

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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 .....

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g near the wall, opposite to the trench were found. The silver so recovered bearing marks of foreign origin with .999 purity and weighing 2640.227 kg. were valued at ₹ 1,75,60,169/- and the same were seized on prima facie satisfaction to be liable for confiscation under the Act. On the same day another team of customs officers was sent to the shop of M/s Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur and searched the premises in presence of two independent witnesses. The .....

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was seized under Section 110 of the Act. A panchnama was also drawn. The statement of Ram Kishore Mishra, Ram Avatar Singhal, Ram Bilas Mandal and Ram Kumar Kashyap-driver of the Maruti Gypsy, Jagdish Shanker Trivedi alias Jijaji and the panch witnesses who confirmed the recovery of 79 silver bricks of foreign markings from the premises of the appellant and the statement of Sri Om Prakash and others were recorded under Section 108 of the Act. 6. On the basis of the aforesaid evidences and on the .....

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Ram Avatar Singhal on monthly rent of ₹ 200 and he was not in possession and use of the premises on the relevant date. He also stated that a suit was filed by his brother against Ram Avatar Singhal on 11.12.1992 in the court of Civil Judge, Unnao 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 appe .....

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mposed 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 before the Customs, Excise and Service Tax Appellate .....

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blished between Ashish Kumar Chaurasia alias Pappu doodhwala and the seized silver. It was held that the consistent statements which were recorded at Kanpur and Delhi at different times on the same day brought about the involvement of the noticees in the smuggling of the silver. It was also held that there was no proof regarding letting out of the premises to Ram Avatar Singhal and no body came forward to demarcate the area from the doodh ki dairy of Ashish Kumar Chaurasia. It was held that the .....

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is role was much more than a paid carrier or storer and he appeared to be the organiser of the entire smuggling chain and obviously the biggest beneficiary of these acts. The cross-examination of the officers, A.K. Chaturvedi and Simon which was done by Ashish Kumar Chaurasia also revealed the involvement of Ashish Kumar chaurasia as the main person. The learned Commissioner held that Ashish Kumar Chaurasia had requested for another date for personal hearing after cross-examining these two offic .....

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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 ow .....

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12.1992 with 25 silver slabs concealed in the cavity of the Maruti van, it was held that he was in knowledge of transporting the silver slabs and was aware of the activities of Ashish Kumar Chaurasia and Ram Avatar Singhal and had admitted in his statement that he was aware of the smuggling activity. His involvement was corroborated by the searches of the premises conducted on the basis of his clues and the recovery of silver therefrom. As regards Jagdish Shanker Trivedi (Appeal No. C/360/99), i .....

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d silver being transported to Delhi in a concealed manner, and was thus directly concerned with concealing, melting and transporting the contraband silver to Delhi. 10. The Tribunal considered the contention of the appellant with regard to the alleged denial of principles of natural justice by not offering witnesses for cross-examination and held in paragraph No. 7.2, 9 and 10 of the impugned order as under: 7.2 In the present case, however, ample opportunity were given to Ashish Kumar Chaurasia .....

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proceedings of personal hearing could not be conducted properly. It was, therefore, rightly held that there was no justification for prolonging the adjudication. It is evident from the record that the appellants whose statements were recorded under Section 108 of the said Act had made confessional statements implicating themselves under Section 112 of the Act and such statements were clearly binding on them. There was no question of their statements being recorded under duress, because as noted .....

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e 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 .....

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Supreme Court in Surjeet Singh Vs. Union of India reported in AIR 1997 SC 2560 where the petitioner sought cross-examination of the witnesses who said that the recovery was made from the premises of the petitioner, held that the confession made by the petitioner was binding on him and, therefore, failure to give him the opportunity to crossexamine the witnesses was not violative of principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held: 3. It is true that the pet .....

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place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, witnesses were required to be called. But in view of the confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examin .....

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and was binding 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 c .....

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nt 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 statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with .....

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create a situation where each one of them breath, would ask for crossexamination of the other and refuse to be cross-examined, and then contended that refusal has resulted in failure of proper hearing. Therefore, principles of natural justice do not require that in matters like this, persons who had given information should be allowed to be crossexamined by the co-noticees on the statements made before the customs authorities. If cross-examination is to be allowed as a matter of right then in al .....

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were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, crossexamined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor hi .....

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ghal 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 appe .....

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them to Delhi. He further stated that Ashish Kumar Chaurasia used to conceal the smuggled silver ingots in his dairy famr at Kishori Ka Chata, Pony Road, Shuklaganj, Unnao. He also stated that his firned, appellant Ram Kishore Mishra, who was a small time jeweller was sent by him to Delhi for selling the silver slabs and was paid ₹ 1000/- per trip. He admitted that on the morning of 18.12.1992, he had sent Ram Kishore Mishra with his driver Ram Bilas Mandal in his vehicle bearing No. MP 0 .....

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by Jijaji (Jagdish Shanker Trivedi) in the Maruti Gypsy which was also intercepted. He also admitted that 14 silver slabs and one silver 'thakia' (lump) were recovered from his refinery/factory. In his statement recorded on 20.12.1992, he again referred to the concealed cavities in the vehicles stating that Ashish Kumar Chaurasia had got them made. he has also stated that Ashish Kumar Chaurasia had shown to him the place where he was concealing the silver. He stated that Ashish Kumar use .....

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was considered by the Tribunal and the finding of fact was recorded in paragraph No.11 of the impugned order as under: Both the drivers in their statements admitted the interception of their 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 .....

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dh 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 dairy farm of Ashish Kumar Chaurassia which was dug up and from where 79 ingots of silver of foreign make were .....

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airy farm was given on the rent of ₹ 200/- to Ram Avatar Singhal. In that suit, a prayer was sought in the Civil Court for removal of some wall which was erected. No certified copy of the plaint was produced. It appears that though that suit came to be decided ex-parte much later, there was no attempt made to bring the fact of any rented portion being misused by Ram Avatar Singhal on the record of the proceedings. If there was any element of truth in the defence sought to be put up by Ashi .....

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n for Om Prakash to falsely implicate his master. Having regard to the various statements earlier made by the noticees and other witnesses, it is evident that subsequent attempt was made by some of the appellants to retract them in the criminal proceedings was only an after-thought. After their retraction before the judicial magistrate, statements were again recorded on 3.1.1993 which later statements had not been retracted. Driver, Ram Bilas Mandal had no axe to grind against the appellants. Hi .....

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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 admitte .....

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