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2016 (2) TMI 142 - CESTAT NEW DELHI (LB)

2016 (2) TMI 142 - CESTAT NEW DELHI (LB) - TMI - Maintainability of revenue appeals - Power of the tribunal to consider points in the appeal - Respondents / assessee contended that the Committee of Chief Commissioners while exercising power u/s 129D of the Act to authorize filing of appeal by Revenue did not hold that the order appealed was neither legal nor proper, while such objection was neither made by respondents earlier before Tribunal in the first round of litigation nor before Hon'ble Hi .....

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ised in the memorandum of cross-objections but in the absence of the cross- objections, the Tribunal is to confine itself only for the determination of such points arising out of the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order.

On the basis of evidence on record against each respondent, the Commissioner's findings exonerating each of them are legal and proper and accordingly, the Revenue's appeals are to be rejected - Decided agai .....

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rder dated 23.5.2011 of the Hon'ble High Court of Delhi in CUSAA Nos. 11/2011, 13/2011, 14/2011, 15/2011, 16/20111, 17/2011, 18/2011, 19/2011, 20/2011, 21/2011, 22/2011, 23/2011, 24/2011 and 25/2011 directing Tribunal to rehear each such appeal individually and pass appropriate order therein, a preliminary objection was made by the respondents filing different Misc. Applications as noted against each such appeal, challenging maintainability of the appeals contending that the Committee of Chi .....

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2. C-60/2008 C/M/01/2012 V.S. Teotia 9 C-67/2008 C/M/2/2012 Neeraj Kumar 3. C-61/2008 C/M/75/2012 Parveen Teotia 10 C-68/2008 C/M/3/2012 Yashvir Singh 4. C-62/2008 C/M/74/2012 J.A. Khan 11 C-69/2008 C/M/68/2012 Kanwal Suma n 5. C-63/2008 C/M/69/2012 Vinod Kumar [Kain] 12 C-70/2008 C/M/5204/201 2 S.D. Rajpal 6. C-64/2008 C/M/240/2012 R.K. Dakolia 13 C-71/2008 C/M/213/2012 S.A. Lamb 7 C-65/2008 C/M/70/2012 A.K. Varshney 14 C- 72/2008 C/M/214/2012 V.K. Bharadwaj 2. Hon'ble High Court of Delhi d .....

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nst each of these offices by the Adjudicating Authority. However, the CESTAT went ahead with the presumption as if the role of each officer was common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defense which was di .....

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Tribunal on June, 13, 2011." [Emphasis supplied] 3. Preliminary objection made as above being same in all the Applications and all appeals having arisen out of common cause, evidence and common order of adjudication, it was considered proper to hear all such applications and appeals together to dispose the preliminary as well as appeal by common order in each case. BACK GROUND, COMMON CASUSE MATERIAL FACTS AND EVIDENCE 4.1 On 28.8.2000 investigation found that a frequent flying passenger na .....

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and she had no means to discharge customs duty on 27 pieces of baggage manifested as 2,200 kgs. It was also found that the quantity and value of import was not disclosed by that passenger. 4.2 In terms of Para5.6 EXIM Policy 1997-2002 read with Section 3(2) and (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993, the goods of above description and nature were prohibited/restricted and import thereof in contravention of th .....

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ion. In her statement under section 108 of the Act, she revealed about her frequent travel to India during last three years prior to 28.08.2000, bringing Chinese silk during such visits and stayed in different hotels in Paharganj, New Delhi which was testified by pass port. 4.4 Investigation revealed that a racket of Afghans appearing in Column 'F' of Table - 1 below (which is Table - 14 of the adjudication order at Page 176 thereof), a team of passengers coming from CIS country as appea .....

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ointly or severally evaded duty on the illicit import Persons and Customs Officers who abetted smuggling Persons concerned with dealing with the goods (TRADERS). A B C D E F G 17-12-98 KGA 2003 11338 7,71,007 6,19,659 Olga K, Nazira I and Shakista K Not know Not known 17-9-99 PK814 4546 3,09,125 1,89,185 Olga K Not know Not known 1-2-2000 KGA200 1 22272 15,14,474- 9,26,858 Shakista K Kamal Bajaj, Mamoor Khan, Sana k Nitish Kedia, Anup Singh ,K hem Singh, Arun Dokania, Gopal Dokania,Sanjiv Jain, .....

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okanla , Sanjiv Jain, Mahender Jain ,Anudeep Singh 17-4-00 HY 421 2129 1,44,752 88,588 Olga K Mamoor Khan, TRK Reddy,VK Khurana, Ajay YadavVSTeotia.P arveenTeotia, JAKhan. Nitish Kedia, Anup Singh,K hem Singh, Arun Dokania, G opalDokania, Sanjiv Jain, M ahender Jain, Anudeep Singh 23-4- 2000 HY 433 3046 2472 3565 2,07,138 1,68,100 2,42,386 1,26,768 1,02,877 1,48,340 OlgaK, Nazira I and Shalo A MamoorKhan,Sana k Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahen .....

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hender Jain, Anudeep Singh 22-5-00 K2 545 18296 12,44,155 7,61,423 OlgaK Nazlra I and Shahlo A Mamoor Khan,Sana K TRKReddy, Sudhlr Sharma, Neeraj Kumar Nitish Kedia, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko Mamoor Khan, Sanak, Nazlra, Isamu* K MMitrushov Nitish Kedia, Anup Singh, K hemSingh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 1-7-00 HY429 8220 5, .....

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ey, DSNandal Nitish Kedia, Anup Singh ,Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-7-2000 K-2545 32654 22,20,450- 13,58,916 Nazlra I Mamoor Khan, Sana kJRK Reddy Kozire va ## not paxbutatair'oport When flight arrived. Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 24-7-2000 K-2 545 25630 17,42,840- 10,66,618 Merkulova L Dil Agha, MamoorKhan, Sana k, Sadullah, Zanjir Khan, TRK Reddy, RNZuts .....

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17,81,219- 10,90,106 Olga K DilAgha ,Mamoor Khan, Sadullah, Zanjir Khan, VK Khurana NitishKedia,AnupSingh, K hem Singh, ArunDokania, Gopal Dokania, Sanjiv Jain, M ahender Jain. Anudeep Singh 1-8- 2000 PK 270 5419 5638 3,68,519 3,83,411 2,25,534 2,34,648 OlgaK Nazira I DHAgha ,MamoorKhan, Sadullah, Zanjir Khan, RN Zutshi VKKhuran a* Anil Madan "put upadjudication papers Vinod Kumar(Kain), Kanwal Suman, Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, SanjivJain, Mahender Ja .....

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edla, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 12,57,755 7,69,746 Merkulova DHAgha,Olga K*NaziraI*, *notpassengersbut assessed. Mamoor Khan, SanakSadullah, Zanjir Khan, Pradeep Rana NitishKedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, M ahenderJain, Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 2,66,759 Nazira I DIIAgha, MamoorKh an,Sadullah, Zanjir Khan, Olga K,Prade epRana,SA Lamb, VK Bhardwa .....

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lusion with others and were found to be abettors to the clearance of the smuggled goods on different dates as appearing in Column 'A' of the Table above. They were instrumental to the escapement of the said goods from Airport without payment of duty and proper adjudication under law and such escapement was within their exclusive and special knowledge for which they were brought to the fold of law, 4.6 One Afghan National named Mamoor Khan, S/o Haji Alam Jann bearing Passport No. TR-03635 .....

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his appeal dismissed as reported in 2011/(265) ELT 243 (Tri-Del)7. He named Dil Agha as successor of Mamoor involved in the racket. He was in close contact with Sri Zutshi. 4.7 Mamoor Khan was staying in Sameer Guest House in Ballimaran, Delhi to operate the smuggling in India. His photograph obtained from FRRO was identified by Pawan Kumar, driver of M/s Sehrawat Goods Carrier (who was transporting the offending goods). In his statement dated 17th Dec, 2000, 18th Dec, 2000 and 22nd Dec, 2000, A .....

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goods as appearing in column 'B' and 'C of TABLE - 1 above brought by the offender passengers named in column E of TABLE -1 on different dates in consideration of illegal gratification. That resulted in loss of customs duty of the amounts depicted in column "D" of Table - 1 above. They were constantly in touch telephonically with Mamoor as well as offender passengers before and after arrival of the flights bringing the offending goods to India. He identified Mobile No. 9811 .....

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oms Offices whose name appears in column "F" of TABLE - 1 in clearance of smuggled goods of the quantity and value as depicted in that Table. Their negotiation and settlement with Mamoor Khan for payment of illegal gratification surfaced. 4.10 Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines in his statements dated 26-12-2000, 30-12-2000 and 1st Feb., 2001 identified Mobile No. 9811135921 used by Mamoor Khan. These phones were used in smuggling operation to contact the offending pa .....

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kharabhi aur Sharma Superintendent Bajaj aur Reddy ki shat achhihai" 4.11 Sequel to the above, Pradeep Singh Dhamija of Anmeet Dupatta, 572 Katra Ashrafi, chandni chowk, New Delhi in his statement dated 3rd January 2001 confirmed the smuggling operation naming the offenders involved therein. Statement recorded on 5th Jan, 2001 from Arun Kumar Dokania, Gopal Prasad Dokania, Nitish Kumar Kedia, Anudeep Singh & Mahender Jain who were traders and dealt with the offending goods proved illici .....

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ls, (3) Sudhir Sharma - 103 calls, (4) TRK Reddy - 123 calls, (5) Yash Pal - 37 calls, (6) Rajesh Tomar - 1 call, (7) R.K. Srivastava - 7 calls, (8) Pradeep Rana -19 calls, (9) V K Khurana - 49 calls, (10)P. M. Sharma - 2 calls,(11) R.N. Zutshi - 98 calls and to the phones of Respondent Officers (12) Neeraj Kumar - 25 calls, (13) S. D. Rajpal - 8 calls, (14) Yashvir Singh - 4 calls, (15) V.K. Bharadwaj - 1 call, (16) S. A. Lamb-2 calls, (17) Kanwal Suman - 1 call. All these calls were evident fr .....

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r Kozireva had telephonic contacts with the Respondent Officer S. D. Rajpal on 04.08.2000 (Page 144 of SCN), S A Lamb on 18.08.200 (at Page - 146 of SCN) and with V K. Bharadwaj on 18.8.2000 (at page 146 of SCN). 4.14 TABLE -12(at page 150 to 154 of SCN) shows that the Respondent Officers Neeraj Kumar, Yashvir Singh admitted 4 calls exchanged between him and with Ms. Olga. K.S. A. Lamb admitted to have 2 calls exchanged between him and Olga K, Kanwal Suman admitted exchange of 1 call with Olga K .....

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em. The mobile and land line phones used by the Respondent Officers and different persons as discovered by Investigation are tabulated in TABLE - 2 below. The mobile and land line phones used by offending passengers and racketeers are depicted in Table - 3 as under: Table - 2 SI. No Name designation of the Respondent Officers and period of duty in Airport Dates on which Respondent Officer was involved in abetment of clearances of offending goods as per TABLE - 14 of SCN Mobile Number/Land Line u .....

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2.2000 17.04.2000 9810041291 (M) R. N. Zutshi 4. J,A. Khan Baggage Officer 27.02.2000 17.04.2000 R. N. Zutshi 5. Vinod Kumar [Kain] Preventive Officer 09.07.1997 to November 2000 15.05.2000 24.07.2000 01.08.2000 R. N. Zutshi 6. R.K. Oakolia Protocol Officer May 1998 to Sept 2000. 15.05.2000 10.07.2000 R. N. Zutshi 7. A.K. Varshney Protocol Officer 25.06.1998 to 05.07.2000 15.05.2000 10.07.2000 Res: 6984235 R. N. Zutshi 8. D.S. Nanadal Superintendent 15.05.2000 10.07.2000 R. N. Zutshi 9. Neeraj K .....

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Dil Agha called on 04,08.2000 Olga K. on 04.08.2000 13. S.A. Lamb Preventive Officer 18.08.2000 9810055243(M) Mamoor Khan - 2 Calls Olga Kon 18.08.2000 14. V.K. Bharadwaj Superintendent August 1999 to July 2000 and from July 2000 in Baggage section 18.08.2000 9810032247 (M) Res: 7102235 Mamoor Khan - 1 Call Olga K on 18.08.2000 TABLE - 3 PHONES USED BY OFFENDER PASSENGERS AND RACKETEERS IN SMUGGLING Name of the Passenger Phones used Olga K. 98102 22162 (Airtel) Activated from 03.03.2000 Shalo 98 .....

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2 at page 112-113 of SCN) he stated that Respondent Customs Officers were bribed to make clearance of the smuggled textiles. He was arrested and produced before Metropolitan Magistrate, Delhi on 16.07.2001 for the offence committed as reported in DLT 762, 2001 (59) DRJ 421 against his bail application. Statement of Dil Agha also brought out that Mamoor Khan was intimately connected with Ms. Olga Kozireva who was staying in Sameer Guest House as well as his connection with the Respondent Officers .....

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r Khan and Ms. Olga as well as his stay in Sameer Guest House including his connection with Dil Aga. Print-out relating to call details of offending telephones used by the members of smuggling racket including the Respondent Customs Officers as tabulated hereinbefore proved contacts of each other and no reason was assigned by the Respondent officers in defense against such calls. That became cogent and credible evidence to proceed against them. 4.19 Details of thetelephone calls between the memb .....

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r their ill gain as discovered by investigation. 4.20 Copies of Passenger manifest obtained from Kyrgyzstan Airlines showed the quantity of silk fabrics illegally imported to India by offender passengers on different dates appearing in Table - 1 above. Such gods escaped adjudication under the Act to the extent depicted in that Table. On the basis of inquiry conducted from the Airlines, quantity and value of such goods as appearing in the table was determined and duty evasion thereon detected. 4. .....

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their statements. They had close understanding and conversations with the following members of the smuggling racket depicted in TABLE - 4 below and facilitated clearance of smuggled goods on different occasions without payment of duty and proper adjudication: TABLE - 4 NUMBER OF TELEPHONE GALLS MADE BY SMUGGLING RACKET TO THE RESPONDENT OFFICERS AND THE MEMBERS OF THE RACKET Name of the person with whom conversation was made No. Of occasions of contact Period of contact Mamoor Khan 62 occasions .....

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Zutshi who clearly stated that Sri Praveen Teotia, V.S. Teotia, Vinod Kumar Kain, Yashpal use to talk to the Protocol Superintendents and Officers regarding smooth clearance of cloths of Mamoor Khan brought by the offender passenger Ms. Olga K. and her party. It was also stated by him that Sri Subhash, P. S. Meena, Sri T. R.K. Reddy, Sri Ajay Yadav, and Sri V.K. Khurana, Sri Praveen Teotia, Sri J, A. Khan, Sri V.S. Teotia, used to decide the money to be charged from Mamoor Khan. We further state .....

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udication proposals for lower quantity than the goods arrived at the Airport were placed on record by different respondents. He confirmed collection of illegal gratification by Sri V.S. Teotia, Yashpal and Vinod Kumar Kain from Mamoor Khan and 60% of the collection used to go to Preventive and rest of the same was shared among baggage Officers. Distribution of that money to Officers and Baggage staff was used to be done by Sri D. S. Nandal, Superintendent Sri T. R.K. Reddy and V.K. Khurana and A .....

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dy, V.K. Khurana, Yashpal, KanwalSuman, S. D. Rajpal, Yashvir Singh which were found by Investigation being used in smuggling. That could neither be ruled out by these respondents nor proved to be unconnected with smuggling activity except their pretence of innocence. Evasive replies were given by them to mislead investigation. Respondents failed to rule out their close proximity and intimate connection with the smuggling racket. That brought out their alliance and they proved their exclusive kn .....

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m of illegal gratification for illegal clearance on different dates. 4.26 Smuggling perpetuated for long time and the offending goods escaped levy of duty repeatedly causing serious loss to revenue. In Para 462 of the adjudication order exemplary event of 15-5-2000 was recorded describing how telephonic contacts made when the Flight landed at 9.51 A.M at the IGI Airport. Shri Zutshi talked to Mamoor Khan 4 times before the arrival of the Flight and 3 times after arrival thereof. Table 11 to the .....

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fearlessly for long time in India. Various cogent and credible evidences summarized aforesaid as well as governing facts and attendant circumstances brought home the Respondent Officers to charge under law. Para 76 and 77 of the impugned order reveals that print out of call detail gathered from "Airteal" and "ESSAR" proved use of offending telephones by Mamoor Khan, Ms. Olga, Ms. Shahlo, Dil Aga, Abdul Qayum, Ms. Nazira to contact the Respondent Officers of customs. Such Offi .....

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d In Rs. Customs duty Evaded (In Rs) Passengers who made illicit import Officers who abetted A B C D E F 1-2-2000 KGA2001 22,272 15,14,474/- 9,26,858 Shakista K KamalBajaj, 27-2-2000 HY 151 26,159 17,78,785/- 10,88,616 Olga K and Shakista K V.S Teotia, ParveenTeotiaJ. A. Khan, 17-4-2000 HY421 2,129 1,44,752/- 88,588 Olga K VSTeotia, ParveenTeotla, J A Khan. 15-5-2000 K2 545 25,630 17,42,840/- 10,66,618 Shahlo A VinodKumar(Kain), VS Teotia,RK Docoliya,AKVarshne y, DS Nandal 22-5-2000 K2 545 18,29 .....

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85 4,10,744 2,05,317-2,51,376 Olga K Nazira I SDRajpal 18-8-2000 PK-270 6,410 4,35,880 2,66,759/- Nazira I S A Lamb, V K Bhardwaj 4.28 Statements of Mr. Zutshi was held by learned adjudicating authority to be credential following the decision in the case of Dy. Director of Enforcement v. A.M. Ceaser 1999 (113) E.L.T. 804 (Mad.), where the Hon'ble High Court of judicature at Madras distinguished between the evidentiary value of confession under Section 164 of Cr. PC and Section 40(3) of FERA, .....

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ment and the same was also written as desired by them and he had to sign on account of threat he would be handcuffed. For the simple reason that the accused person expresses threat and coercion from the officers of Enforcement Directorate, unless this threat and coercion appears to be true, the Courts are not bound to accept that explanation offered by the accused." (Emphasis supplied). But, learned Adjudicating Authority exonerated the respondent officer from charge for no rhyme or reason. .....

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of statement of Shri Zutshi was established and that remained un-rebutted. According to ld Adjudicating Authority, if a person voluntarily admits his involvement without any threat, inducement or promises that constitutes the basis of finding him guilty. He held statement of Shri Zutshi crucial and material evidence against him and also against other respondent Customs Officers for which he was penalized Shri Zutshi in the adjudication, but let off the Respondent holding him not guilty. 6. On th .....

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nt appeals, challenged maintainability of appeals of Revenue through a batch of Misc Applications advancing argument that review made under section 129D of the Act by the Committee of Chief Commissioners does not show that the impugned order appealable was "neither legal nor proper" since power under that section is limited to the examination of legality and propriety of the order appealed. The Committee travelled beyond its jurisdiction without making above finding. 7.2 It was submitt .....

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venue are not maintainable. Reliance was placed on the decision reported in 1996 (84) ELT 34 (Tribunal) and also on the decision of Hon'ble High Court of Gujarat reported in 2008 (232) 775 (Guj.) to support the argument. 7.3 Above arguments were adopted by Shri Bipin Garg, Advocate appearing on behalf of the Respondents in C/63/08, C/64/08, C/66/08 and C/69/08. Ms. Reena Rawat, learned Advocate appearing on behalf of the Respondents in appeal case No.62/08, 64/08, 70/08, 71/08 and 72/08 on t .....

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rted in 2011(265) ELT 243 (Tri.-Del). Consequent upon remand of those appeals to Tribunal, character thereof remain unchanged and that remain as "appeal" only before Tribunal lawfully made by Revenue. Such appeal calls for disposal on merit without hearing any preliminary objection in absence of direction of Hon'ble High Court of Delhi in that behalf. Hon'ble High Court did not find any legal infirmity in the Revenue's appeals made originally. Therefore Respondent applicant .....

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of the "order" of authorization passed by the Committee of Chief Commissioners of Customs, which is apparent from pages 3 and 4 of the High Court's order dated 23.5.2011. 8.3 According to ld. DR, Review Committee had taken appropriate decision for which the appeal came up before the Tribunal and decision in such appeals were carried to Hon'ble High Court by the Respondents. Therefore, there should not be any fiction or confusion by Respondents at this stage since Tribunal has .....

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urt, it has been categorically recorded by the Hon'ble court that the Respondents before the Tribunal were "Appellants" before the Hon'ble Court. Relying on the following part of the Hon'ble Court's order, ld. DR submitted that the reason of remand by Hon'ble Court was to consider merit of each case by Tribunal without going into the maintainability aspect not directed by Hon'ble High Court:: "From what we have indicated above and on going through the order .....

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common and similar in nature. Merely on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to .....

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risdiction in these appeals is limited to deal with merits of each case without entertaining Misc. applications of Respondents. This is the only necessity by the order of the Hon'ble High Court in terms of page 6 thereof. Drawing further attention to the order of the Hon'ble Court, it was submitted that there were 14 "appeals" before the Hon'ble Court which arose out of "appeal order" of the Tribunal when first sentence of the order of the Hon'ble Court is rea .....

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ed by respondents. So also terms and expressions used in one statute does not prevail over other statutes ignoring the context in which such terms and expressions are used in the respective statue. Therefore all Misc. Applications of Respondents are liable to be dismissed. Apex Court in Para 9 of the decision reported in 2001 (133) ELT 257 (SC), has laid down the law that remand does not enlarge scope of consideration beyond direction. 8.7 Shri Pathak, ld. DP, on behalf of Revenue emphasized tha .....

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aking decision by the Committee of Chief Commissioners. Decision of the Committee required under law is to be understood by a totality of reading of the order of the committee showing its satisfaction for seeking appeal remedy by Revenue. Mere absence of words "neither legal nor proper" in the order of the Committee does not make Revenue remediless and no hyper technical reading of Review order is desired by law. 8.8 Shri Amresh Jain, ld. DR arguing further for Revenue submitted that & .....

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n at all by any of the Respondents. Therefore jurisdiction if not challenged at the first instance that cannot be challenged after the matter came back from Hon'ble High Court for rehearing on merit only. 8.9 It was further submitted that the review contemplated by Section 129D is an administrative exercise to examine appealability of the impugned order so as to safe guard interest of revenue. A hierarchy has therefore been prescribed to do such exercise. Points for decision by Tribunal are .....

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section 129D of the Act cannot be read in the manner the Respondents suggest to the Tribunal since no power of Review is vested on the Committee by that section except reaching to a satisfaction to prefer appeal. Revenue has also not filed any review application before Tribunal since Tribunal has appellate jurisdiction only. Therefore law requires appeal remedy only to be sought before Tribunal. 8.10 Summarizing the arguments, ld. JCDR Sri Promod Kumar submitted that Section 129D has prescribed .....

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Authority in the present case, ignoring preponderance of probability and weighty evidence available on record, has failed to do justice to Revenue, prejudice was caused to it by his decision. Accordingly appeals of Revenue deserve consideration following direction of Hon'ble High Court. 8.11 It was further emphasized by learned JCDR that Revenue came in appeal before Tribunal in this batch of appeal due to no legal and proper order passed by learned Adjudicating Authority in respect of prese .....

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ht by Revenue. The term "may" used in Section 129D of the Act even entitles the Committee to call for the record suo moto for examination so as to satisfy whether order of authority below needs remedial measure. Accordingly, his emphasis was that appeals were filed lawfully and the Committee did not travel beyond its jurisdiction, objection of Respondents being devoid of merit are to liable to be dismissed following direction of Hon'ble High Court to dispose each appeal on merit. 9 .....

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ability of an appeal, that can be raised at any stage of the proceedings including the stage of execution of a decree. Objecting to revenue's argument that meaning of a term under one statute shall not have application to another statute, respondents submit that it was not their arguments that definition is to be adopted but ratio laid down by Apex Court on the point of law to be applied. 10.1 Heard both sides. 10.2 Since appeals of the Respondents were remanded by Hon'ble High Court for .....

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ner (Appeals) on the point or points on which Committee of Commissioners or Chief Commissioners direct an authority below u/s 129D of the Act to make such application to the Tribunal which is treated as an appeal by Tribunal under the Act. The provision granting right of appeal to Revenue is enacted in section 129A of the Act which reads as under SECTION 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against .....

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no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destin .....

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i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is .....

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y notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Customs or two Commissioners of Customs, as the case may be. (2) The Committee of Commissioners of Customs may, if it is of opinion that an order passed by the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day, or by the Commissioner (Ap .....

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ion that the order passed by the Commissioner (Appeals) is not legal or proper, direct the proper officer to appeal to the Appellate Tribunal against such order. Explanation.-For the purposes of this sub-section, "jurisdictional Chief Commissioner" means the Chief Commissioner of Customs having jurisdiction over the adjudicating authority in the matter. (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against .....

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ainst any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (6) An appeal to the .....

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ty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees : Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memoran .....

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as prescribed the process of ascertaining the point or points on which Revenue may seek decision of the Tribunal in appeal. Such process neither involves exercise of power of Review nor revision by a Committee recognized by law in this behalf. Administrative exercise is only done by the Committee to preliminary satisfy that the order passed by the adjudicating Commissioner or Commissioner (Appeals) is neither legal nor proper. If it is not satisfied, it ascertains such point or points on which d .....

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such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order. Provided that where the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the Commissioner of Customs, it shall state the point or point .....

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ustoms may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any officer of Customs subordinate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specifie .....

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Commissioner (Appeals) within a period of one month from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so .....

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oner considered neither legal nor proper, for determination of such point or points by Tribunal. The authority so vested on the Committee is to avoid filing of frivolous or unnecessary appeals by Revenue and no process of law is abused. In short, if an order passed by an adjudicating Commissioner or Commissioner (A) is contrary to law, appeal there on is filed by Revenue upon direction by the Committee. 10.6 There being only remedy of appeal prescribed by law against an order passed by adjudicat .....

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e, it is not expected that the Committee is required to examine the order appealed with the characteristics of legal and proper prescribed by the decision in Lachman Das' case (supra). 10.7 The decision in Lachman Das' case (supra) related to a matter before a Revisionary Court but not before a committee of the nature and stature prescribed by section 129D of the Customs Act, 1962. Further, the decision in that case arose under the Haryana Rent Control Act which did not provide second ap .....

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cise any power of Review under section 129D of the Act, except forming an opinion that the order sought to be appealed is neither legal nor proper. 10.8 It may be stated that while exercising revisionary jurisdiction the attributes of legality and propriety of an order is intended to be tested under Haryana Rent control Act. Therefore it cannot be presumed that the Committee set up u/s 129D of the Act has same power of revision or review to test legality and propriety in the sense Haryana Rent C .....

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ibed statutory limitations. But in the case of revision whatever powers the Revisional authority may have, it has no power to reassess and re-appreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. 10.10 Sub-section (6) of Section 15 of the Haryana Rent Control Act, conferred revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceeding taken .....

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er than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring th .....

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ntext of exercise of Revisional power by High under the Haryana Rent Control Act, the Respondent misplaced the citation and fail to gain benefit of that judgment in absence of review or revisional power conferred on the Committee of Chief Commissioners. It may be stated that Review literally and even judicially means re-examination or reconsideration of evidence which not the object of section 129D of the Customs Act, 1962. Basic philosophy inherent in Review is the universal acceptance of human .....

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98 (101) ELT 5 (SC) held that the provisions of section 35B (2) clearly require formation of the opinion by the Collector that the order against which the appeal is to be filed is "not legal or proper" and direction to any Central Excise Officer to file an appeal is prerequisite. 11.2 Tribunal not being vested with writ jurisdiction has no power to review the opinion of the Committee since the first stage of formation of opinion by the Committee is only necessity of section 129D(1) of .....

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mmittee has not travelled beyond its jurisdiction. Respondent misplaced reliance on the decision in the case of Shree Ganesh Dyeing (supra). Reliance placed by Respondent in the case of B. Arun Kumar & Co. v. Collector of Customs 1996 (84) ELT 34 (Tri) also is of no avail since that was on a different set of facts and on the question whether Board has passed order to seek appeal on extraneous or additional material. Respondent therefore fails on all counts of his objection and the Misc. Appl .....

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Zutshi on different dates including 10.07.2000. Shri Zutshi has categorically named this respondent in his statement dated 17.01.2001. He stated that this respondent was in conversation with Protocol Officers and Superintendents for clearance of the smuggled goods by the smuggling racket. He was a negotiator of the illegal consideration to be received against illegal clearance of smuggled goods. He was also settling the amounts to be charged from Shri Mamoor Khan during April, 2000 onwards. He w .....

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. 12.3 Finally it was argued by Revenue that in view of aforesaid submissions and various evidence recorded in Para 4 above, appeal of Revenue may be allowed since adjudication was made on erroneous premises to exonerate the Respondent. SUBMISSIONS OF RESPONDENT 13.1 Ld. Counsels Shri Piyush Kumar and Shri Prem Ranjan appearing on the last occasion of hearing submitted that this respondent was not at all involved in any clearance of smuggled goods and there was no phone contact made by him with .....

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er, learned DR, on behalf of Revenue, submitted that when the Respondent had hand in glove with the smuggling racket for illegal consideration to cause prejudice to Revenue. He was co-sharer of illegal gratification settled by his team of Respondent Officers of Customs who were actively involved in clearance of smuggled goods. He was not innocent. He misled investigation without coming out with clean hands and made a futile exercise to get rid of the charge. His evasive reply proved his exclusiv .....

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ing with Mr. Mamoor Khan, and was settling the illegal gratifications payable in consideration of the clearance of smuggled goods. He was negotiator during April to July, 2000 and also during rotation from July, 2000 onwards (refer page 43 of O-I-O). 60% of the collected gratifications used to go to preventive staff and rest of the amounts were distributed among baggage officers. 17. The respondent in his statement dated 12.02.2001 stated that from 09.07.1999 to November, 2000, he worked in IGI .....

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n the air port. But the Respondent pleaded his innocence as to his knowledge about Mr. Mamoor Khan, Mr. Dil Agha and Ms. Olga. 18. When the statement of Shri RN Zutshi was confronted to this respondent, he stated that April to July, 2000 rotation took effect in the beginning of May, 2000 and he was not involved in the clearance of the smuggled goods. He explained that on 12.06.2000, he was allotted duty at Gate No.8 (general duty) and he was not aware of anything happened in the airport. He stat .....

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respondent was the statement of Mr. Zutshi and about his negotiations and decisions on monetary consideration to be charged for the clearance of smuggled goods. But, there was no abatement committed by him in the absence of any corroborative evidence in the form of record of telephone calls. 20. The evidence appearing in different sub paras of Para 4 gathered by investigation and cumulatively assessed prove close association, involvement and concern of the Respondent Officer in the smuggled goo .....

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sengers since his call details proved his contacts and he had no explanation to be free from the charge of his contacts with the smuggling racket. He fabricated the story of use of his phone by other officer and failed to succeed in such attempt. His plea of innocence was turned out to be false. 21. Respondent Officer was posted in Airport for the period as aforesaid. His conversation with Mamoor Khan and Ms. Olga could not be ruled out by him. His conscious and deliberate involvement in contact .....

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ations of investigation, Respondent submitted himself to the commission and omissions under law. 22. Sri Ajay Dhiman, Traffic Supervisor of Kyrgyzstan Airlines stated in the statement recorded u/s 108 of the Act that Mamoor mentioned to him during November -December 1999 that "shift ki guarantee par hee mall mangwatahoon and Assistance Commissioner Gupta ki shift bahut kharabhi aur Sharma Superintendent, Bajaj aur Reddy ki shat achhi hai". This dearly proved who were conduits of racket .....

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e thereof illegally in association with other Respondent Officers on the respective dates. Such fact was established from the evidence of Shri R.N. Zutshi, who has already lost his appeal before Tribunal in the decision reported in 2011 (265) ELT 243 (Tri-Del). 24. Members of smuggling racket disclosed identity of the Respondent Officer who was intimately and consciously connected with the commitment of the offence alleged against him. He was instrumental to make the smuggling successful on the .....

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f Revenue for which the Respondent Officer is responsible and liable to penal consequence under the law. 26. Premeditated mind of the respondent officer was proved when he failed to report arrival of smuggled goods which exited freely from airport without levy of duty and proper adjudication. He merely pretended to be innocent and misguided investigation. As a co-sharer of illegal gratification, he proved to be guilty being member of the team of law evaders causing prejudice to Revenue. 27. Not .....

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role in facilitating clearance of smuggled gods from Airport without payment of customs duty and proper adjudication proved his concern with the smuggling of the offending goods and his intimacy with other members of the racket could not be ruled out as is revealed from the evidence recorded in Para 4 aforesaid and that remained un-rebutted. 28. While learned adjudicating authority used telephonic contacts, preponderance of probability as well as materiality of governing facts and attendant cir .....

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6) ELT 321 (DEL) that when the reason why telephonic conversation took place remained unexplained that does establish and corroborate a close relationship between the parties to the calls. The respondent failed to lead any cogent evidence and reason to explain why calls were made by him and also calls came to his phone as appearing in TabIe-2 and 4 afore said. Illegal clearance made on the respective dates brought the Respondent Officer to scrutiny of law. As a co-sharer of illegal gratification .....

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s another without any intent good or bad or in vacuumed mind. His object of contact is well known to him and that is secreted in his mind till revealed by his action. In Para 28A of the adjudication order, frequent contacts made by Ms. Olga Kozireva through cell phones on different occasions to different persons came to light. Para 29 of the impugned order also brought out such fact from the statement recorded on 13-12-2000 from Shri Sandeep Bhatia, Security Representative of United Airlines Ind .....

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ation order. All these evidence established that Ms. Olga Kozireva and her party were actively and consciously in contact with the members of smuggling racket as well the team of Respondent Officers who facilitated clearance of offending goods on different quantities on different dates as per TABLE - 5. That remained un-rebutted by the respondent Officer and without being an innocent he proved his deliberate defiance of law. He merely pretended to be innocent giving evasive reply to investigatio .....

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was baseless conclusion of the learned Adjudicating Authority that mere contact with Ms. Olga was not sufficient evidence to penalize the Respondent Officer. The Authority also held that although certain contacts were made by the Officers with Ms. Olga on certain dates, on those dates, she was not the passenger bringing the smuggled goods. Such conclusion is of no avail when she was an offender passenger and leader of her party bringing offending goods along with other offending passengers and .....

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uty. 32. The term "concerned" appearing in sectionll2 of the Act has been explained by Apex Court in the case of Sachidananda Banerji v. Sitaram Agarwala 1999 (110) ELT 292 (SC) laying down the law that this term is to be given wide interpretation and even if a person has no physical connection with the smuggled goods, he is liable if he is interested or consciously takes any steps to promote smuggling. In the present case, the respondent officer promoted smuggling having his conscious .....

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own in the case of Bhagwan Swarup and Others v. State of Maharashtra AIR 1965 SC 682 that an agreement between the conspirators need not directly prove the offence of conspiration which can be established by either direct or circumstantial evidence. It has been held by apex Court 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 mea .....

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materiality of smuggling to the notice of higher authority of Customs. Echoing evidence in para-4 on record established live link and intimate connection of the Respondent with the smuggling racket. When respondent Officer was guilty and failed to prove his innocence the adjudication inference drawn in favor of the Respondent Officer is contrary to law. 34. Preponderance of probability and testimony of Sri Zutshi vividly explaining the modus operandi of smuggling and abetment by the respondent o .....

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quire the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. 35. The standard of proof in a civil case is preponderance of probabilities. In a civil case there is no burden cast on any party similar to the one .....

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ty is made conclusive by law. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. A fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A .....

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ciple against the Respondent Officer makes his adjudication faulty in so far as this Respondent is concerned who is made charge free. 36. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered. In tax proceedings, Department is required to prove facts which are especially within the knowledge of the guilty officer. It is not obliged to prove them as part of its primary burden. 37. Escapement .....

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fied from the Apex Court judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. 1996 (86) E.L.T. 460 (S.C.). So also fraud nullifies everything as held by Apex Court in Commissioner of Customs v. Candid Enterprises 2001 (130) E.L.T. 404 (SC) and in the case of Delhi Development Authority v. Skipper Construction Company (P) Ltd AIR 1996 (SC) 2005. Escapement of offending goods from notice of Revenue was result of fraud by this Respondent against Revenue. The frauds committed by the perpetrators .....

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l consequence of law following Apex Court judgment in the case of K.I. Pavunny v. AC 1997 (90) E.L.T. 241 (SC). An act of fraud on Revenue is always viewed seriously. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or .....

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. Similarly a "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. 41. In leading English case i.e. Derry v. Peek (1886-90) All ER l what constitutes "fraud" was described thus: (All ER p. 22 B-C) "fraud" is proved when it is shown that a .....

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so amount to a fraud on the court (See Gowrishankar v. Joshi Amha Shankar Family Trust [1996 (3) SCC 310] and S.P. Chengalvaraya Naidu's case AIR 1994 SC 853. No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unravels everything and fraud vitiates all transactions known to the law of however high a degree of solemnity. 42. Evidence gathered by investigation unerringly proved that the respondent officer was a member of the abetting team of respondent offic .....

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iate malafide of the respondent Officer being in association with the smuggling racket and being familiar with the offending goods. Thus the Respondent cannot be made charge free when he had pecuniary interest in the smuggling which was not ruled out by him. That was proved from credible statements of Abdul Qahar, Wali and DilAgha as well as Sri Zutshi recorded by investigation discovering motive and truth of the deals. Their statements remained un-assailed. Respondent being posted at airport wh .....

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his ill will being a co-sharer of illegal gratification and caused loss to revenue and his association with the racket proved from material facts and evidence discussed hereinbefore, the respondent failed to be a stranger to the incidence of levy and escapement of duty. He made deliberate breach of law. As perfect proof with mathematical precision in this imperfect world seldom exists, preponderance of probability was in favor of Revenue, Respondent was guilty of the offence committed by him. 4 .....

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on him without prejudice to any other consequence of law that may follow. It is only the quantum thereof that needs determination on the basis of gravity of the matter and depending on the number of occasions he was instrumental to the illegal clearances. 46. In view of the aforesaid discussion, material evidence and governing facts as well as law applicable, considering that the appellant was concerned with the clearance of the goods on all the 11 days as per column-1 of Table - 5 Aforesaid ca .....

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I am recording a separate order. 2. These appeals have been heard for de-novo decision in pursuance of the directions of Hon'ble Delhi High Court in its judgment dt. 23.05.11 in respect of Customs Appeal No. 11 & 13 to 25/2011 filed by the Respondents. Hon'ble High Court while remanding 14 appeals filed by the Revenue to the Tribunal for de-novo decision has given the following directions:- From what we have indicated above and going through the orders passed by the Adjudicating Auth .....

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y on the basis of the statement of Mr. Zutshi, the Tribunal has set aside the order of the Adjudicating Authority and holding that all these are guilty of abetment. This approach of the Tribunal is clearly against the Law which has seriously prejudiced the cases of each of the appellants. Their specific defence which was different in nature from each other has not been discussed or dealt with. For this reason alone, we set aside the impugned orders which relate to 14 Custom Officers/appellants h .....

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onsidering their defence, exonerated them and has decided not to impose any penalty on them under section 112 of the Custom Act, 1962. This part of the order of Commissioner was reviewed by Committee of Chief Commissioners under section 129D(1) of Customs Act, 1962 and the Committee directed the Commissioner to file Appeal against his order in respect of these 14 officers. Earlier, the Tribunal had allowed the Revenue's appeals and had imposed penalty of Rupees one Lakh under section 112 of .....

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the evidence on record against the Respondents and their defence in some cases is separate, I am passing a Common Order in which the evidence against each respondent, and his defence shall be separately discussed. Since the facts of the case and the arguments of the Revenue and the respondents have been discussed in detail in orders prepared by my learned brother, the same are not been repeated in this order. 4. The case in brief is that some Uzbek lady passengers namely Ms Olga Kozireva, Ms J- .....

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, Ajay Yadav, Sh. Yash pal, Sh. T.R.K. Reddy, Sh. R.N. Jutshi, Sh. V.K. Khurana, Sh. Pradeep Rana, Sh. Anil Madan, Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh. Yashvir Singh, Sh. Kanwal Suman, Sh. S.D. Rajpal, Sh. S.A. Lamb and Sh. V.K. Bhardwaj. Besides this, there is also allegation of connivance of Sh. Mamoor Khan and Sh. Dila Agha and their associates with the officials o .....

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ngers as carriers of smuggled goods. The Commissioner while imposing penalty on the custom officers namely Sh. Sudhir Sharma, Sh. Ajay Yadav, Sh. Yash Pal, Sh. T.R.K. Reddy, Sh. R.N. Zutshi, Sh. V.K. Khurana, Sh. Pradeep Rana and Sh. Anil Madan, had exonerated respondents in this group of appeals namely:- Sh. Kamal Bajaj, Sh. V.S. Teotia, Sh. Praveen Teotia, Sh. J.A. Khan, Sh. Vinod Kumar Kain, Sh. R.K. Dacolia, Sh. A.K. Varshney, Sh. D.S. Nandal, Sh. Neeraj Kumar, Sh. Yashvir Singh, Sh. Kanwal .....

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n which the Respondent is alleged to be involved in abetment of smuggling of Chinese Silk. Mobile/Landline telephone no. used by the Respondent to make contact with alleged smugglers namely Uzbek lady passengers and Afghan Nationals namely Sh. Mamoor Khan & Sh. Dil Agha No. of telephonic contacts between Respondent and lady passengers/ Sh. Mamoor Khan & Sh. Dil Agha Whether the Respondent was named by anybody as the person who had abetted the smugglingof Chinese Silk by Uzbek lady passen .....

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one installed at the residential premises which he was sharing with Sh. A.K. Varshney to the mobile No. 9811135921 of Sh. Mamoor Khan of about two minutes duration. Name by Sh. R.N. Zutshi - Preventive Officer in his statement recorded by DRI Officers wherein Sh. Zutshi has alleged that Sh. V.S. Teotia used to negotiate with Sh. Mamoor Khan regarding the money to be charged for facilitating the illicit clearance of the goods brought by Uzbek lady passenger. Sh. Praveen Teotia, Preventive Officer .....

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15.05.2000 10.07.2000 (Land Line) - 6984235 A telephonic call on09.05.2000 from landline phone to mobile no. 9811135921. Same as above Sh. D. S. Nandal -Superintendent 15.05.2000 10.07.2000 NIL NIL Same as above Sh. Kanwal Suman -Inspector/ Protocol Officer 24.07.2000 01.08.2000 (Mobile)-9811024767 (Land Line) • 5596135 One Telephonic each Contact with Mamoor Khan and MS Olga Same as above Sh. Neeraj Kumar -Preventive Officer posted from 22.06.98 to July'2000 22.05.2000 01.07 2000 (Mobi .....

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055243 Two telephonic contacts with Sh. Mamoor Khan and one with Olga Kezireva on 18.08.2000 Not named by anybody. Sh. V.K.Bhardwaj -Superintendent posted fromAug.'99 to Juie'2000 18.08.2000 (Mobile)-9810032247 (Land Line) - 7102235 One telephonic contact with Sh. Mamoor Khan & one contact with MS Olga Kozireva on 18.8.2000. Not named by anybody. 4.1 The Commissioner in the impugned order while observing that the standard of evidence required in quasi judicial proceedings under the P .....

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o uphold the allegation of abetment of smuggling against the respondents for the purpose of imposition of penalty on them under section 112 of the Custom Act, 1962. 5. A common defence of each of these 14 Respondents is that these appeals have been filed by the Commissioner under section 129D(4) read with Section 129D(1) of the Custom Act, 1962 and while an Appeal under section 129D(4) read with Section 129D(1) can be filed against the Commissioner's Order only if the order suffers from a ma .....

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Court in the case of Laxman Dass v. Santosh Singh [1995] 4 SCC (201) pleaded that the appeal filed by the Revenue under section 129D(4) read with section 129D(1) and 129D(2) are in the nature of revision application whose scope is different from appeals filed under section 129A(1) of the Custom Act, 1962 and while an appeal filed under section 129A(1) is continuation of the original proceedings and the Appellate Authority re-evaluate the evidence and reexamine the points of law and can pass any .....

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use on the basis of the set of facts, another view, different from the decision taken by the Adjudicating Authority, is possible. The Revenue's contention is that once an order has been passed by the committee of Chief Commissioner (Reviewing Authority) under section 129D(1) directing the Commissioner to file an application before the Tribunal for correct the determination of the points arising out of the order as mentioned in the Review Order and once in pursuance such an order passed under .....

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the appeal filed by the Revenue under section 129D(4) read with section 129D(1) cannot be treated as a Revision Application. It was also pleaded that since this point was not raised in the first round of litigation before the Tribunal, the same cannot be raised in course of de-novo proceedings and the Tribunal should confine itself only to the points which are required to be examined in terms of the directions of Hon'ble Delhi High Court in its order dt. 23.05.11. My learned brother in his o .....

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section 129D(1) read with 129D(4) is like any other appeal filed under section 129 A(1) and cannot be considered as revision application and that since an appeal is a continuation of the original proceedings wherein the entire proceedings are again left upon for consideration by the Appellate Authority which has the power to review the entire evidence subject to the prescribed statutory limitations, the plea of the respondents that in this group of appeals filed by the Revenue, the findings of t .....

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ion is considered not legal or proper, for correct determination of such point or points by the Tribunal. (b) The Authority so vested on the Committee is to avoid filing of frivolous or un-necessary appeals by the Revenue; (c) The Committee of Chief Commissioner does not exercise any review power and when no review power is exercisable by the committee, it is not expected that the committee is required to examine the order appealed for legality or priority like a Revisionary Authority and; (d) T .....

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the proceedings before the Original Adjudicating Authority or the first Appellate Authority in which the findings of the Commissioner/Commissioner (Appeals) on any point of fact or the point of law with which the Appellant is aggrieved can be challenged, and in which the Tribunal as the Appellate Authority has to reconsider the lower authority's decision/findings on all such points raised in the appeal, this is not so in case of appeal filed by the Revenue. As is clear from the wordings of S .....

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is not legal or proper. Similarly in terms of Section 129D(1) read with Section 129D(4), appeal against an order passed by the Commissioner as an Adjudicating Authority can be filed by the Revenue only if the Committee of Chief Commissioner's constituted by the Board for this purpose has, within the stipulated time limit prescribed in Section 129D(3) examined the record of the proceedings in which the Commissioner has passed the order as Adjudicating Authority and is of the opinion that the .....

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rovisions of Section 129D(4), this application filed by the Commissioner before the Tribunal is to be treated as if it were an appeal against the Commissioner's Order and since the Appeal has been filed only for correct determination of the point or points, as mentioned in the order passed by the Committee of Chief Commissioners/Board, in respect of which, the Commissioner decision, in the opinion of the Committee/ Board is not legal or proper, the scope of appeal which is to be decided by t .....

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s is more clear in case of appeal filed by Revenue against an order passed by Commissioner as an Adjudicating Authority, as from the language of Section 129D(1) it is absolutely clear that the Committee or on the case may be, the Board while seeking review of the Commissioner's Order, is required to point out the point or points on which accordingly to its view, the Commissioner's order is not legal and proper and the application under section 129D(4) is to be filed by the Commissioner b .....

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ld be illegal if on the basis of the facts on record and the provisions of laws only one view is possible and the adjudicating authority has taken a different view. If, however, on the basis of the facts on record and the provisions of law more than one plausible views are possible, and the adjudicating authority has taken one of such plausible views, the order cannot be said to be suffering from a material illegality. The impropriety means the order having been passed by the Commissioner totall .....

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of Commissions/Chief Commission or under section 129D(1) read with Section 129D(4) on the basis of an order passed by the Committee of Chief Commissioner/Board. Just because the Committee of Commissioners /Jurisdictional Chief Commissioner, in respect of an order passed by Commissioner of Customs (Appeals) or Committee of Chief Commissioner/Board in respect of an order passed by Commissioner of Customs as an Adjudicating Authority takes a view which is different from the view taken by the Commis .....

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For example, an order passed by a Commissioner dropping the duty demand and penal proceedings against an assessee relying upon the judgment of a High Court, cannot be said to be suffering from illegality or impropriety and cannot be challenged by the Revenue before the Tribunal by filing application under section 129D(4) read with Section 129D(1) just because the High Court's order relied upon by the Commissioner has been challenged before the Apex Court and the Department's appeal is p .....

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filed under section 129D(4) is to be treated as an appeal before the Tribunal, the appeals filed under section 129 A(2) or section 129D(4) before the Tribunal have to be treated as revision, as from the language of these sections, it is clear that the scope of the appeals filed by Revenue is confined only to the points on which according to the Reviewing authority, the impugned order is not legal or proper and this is precisely the scope of a revision proceeding. 5.1.2 The power under section 1 .....

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e of Chief Commissioner, or as the case may be, by the Board in case of difference of opinion between the Chief Commissioner constituting the Committee, is the power of Superintendence conferred on the Committee/Board over the quasi judicial function of the Commissioner, even though the final decision on the points mentioned in the order issued under section 129D(1) on which the Commissioner's decision is considered to the illegal or improper, is taken by the Tribunal. The Apex Court in the .....

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35E(3) for exercise of this power, the same is to be exercised by the designated officer within that limitation period. However, main observation of the Apex Court in this judgment is that the power under section 35E(1) of the Central Excise Act 1944 (which in pari materia with the provisions of Section 129D(1) of the Customs Act, 1962) is a power of superintendence conferred on superior authority to ensure that subordinate officers exercise their power under the act correctly or properly. Sinc .....

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the points of patent and material illegality of impropriety in the commissioner's order. 5.1.3 The power exercised by Committee of Chief Commissioner under section 129D(1) is similar to the power of superintendence exercised by a High Court under Article 227 of the Constitution over all the Courts and Tribunals within its jurisdiction. The Apex Court in series of judgment in the cases of Nibaran v. Mahindra AIR (1963) SC 1895; Chandravarka v. Ashalata AIR [1986] SC 117 and Ouseph Mathai v. .....

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ani v. Phiroz AIR [1991] SC 1494 has held that High Court should not interfere with a findings of fact within jurisdiction inferior of Tribunal, except where the decision of the Tribunal is perverse or not based on any material whatsoever or the conclusion arrived at is such that no reasonable Tribunal could possibly have come to, or it has resulted in manifest injustice. In the case of Khimji Vodhu v. Premier High School AIR [2000] SC 3495, the Apex Court has held that the Jurisdiction under th .....

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1) for ascertaining as to whether the order is legal and proper and directing the Commissioner to apply to the Tribunal for the correct determination in respect of points of illegality and impropriety, if any is power of superintendence, which has to be exercised only when the order passed by the Commissioner suffers from patent and material illegality or impropriety, by directing the Commissioner to file an application to the Tribunal under section 129D(4) for correct determination of the point .....

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129D(1). The illegality and impropriety, as mentioned above, is the order of the Commissioner being patently contrary to the Provisions of the Law or being in gross valuation of the principles of natural justice or having been passed outside the jurisdiction or by ignoring the points of fact or the points of Law placed on record by either side or the fine or penalty imposed being grossly disproportionate to the nature and gravity of the offence, or in other words, the order passed by the Commiss .....

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ess Commissioner's decision on that point suffers from material illegality or impropriety. 5.1.5 My learned brother in his order has appreciated the difference between an appeal proceeding and a revision proceedings. While appeal is a plea by the aggrieved party for a second judgment on the matter, is a continuation of the original proceeding and is a statutory right of the aggrieved party and in the appeal proceedings, the appellate authority can taken a relook at the decision of the adjudi .....

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sioner of Customs as an adjudicating authority, the scope of such an appeal, filed by the Revenue would be confined only to the points of material illegality or impropriety as pointed out by the reviewing authority Committee of Chief Commissioners/Board in the order passed under section 129D(1) and in these proceedings, the Tribunal cannot re-adjudicate the entire matter, but has to confined itself only to the points of material illegality or impropriety. 5.2 In the present case, on going throug .....

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:- "In view of the overall facts and perspective, order merits review on the basis of evidence on record for confiscation of the goods under section 111(f) of the Act and for imposition of penalty on all the above mentioned four individuals, 15 Custom Officers and Kyrgyzstan Airlines under section 112 of the Act. The Committee hereby authorizes to Sh. M.D. Singh Commissioner of Customs, Import & General, new Customs House, New Delhi to file appeal before the CESTAT". As mentioned a .....

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gives the facts of the case and the details of the Commissioner's order and under the heading "grounds of application/appeal" simply discusses evidence on record against each of the 14 Customs Officers along with its view that the evidence on record proves the involvement of the officers in smuggling and is sufficient for imposition of penalty on him under section 112 of the Customs Act, 1962. ' Neither the defence of the officer is discussed nor there is any discussion as to w .....

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sioner to file appeal to the Tribunal. The order passed by the Committee under section 129D(1) is, therefore, an invalid order and on this ground itself the appeals filed by the Revenue have to be dismissed as invalid appeals, as the appeals filed by the Revenue under section 129D(4) read with section 129D(1) are not the appeals for correct determination of the points arising out of the Commissioner's Order on which the Commissioner's decision, according to the Committee, is not legal an .....

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's findings on the points of fact and the Law which represent a plausible view, cannot be overturned and only the findings which are perverse i.e. patently contrary to the Provisions of the Law or are improper can be interfered with. In my view, these appeals have to be decided on the basis of this criteria only and in these proceedings the commissioner's findings with regard to the respondent cannot be reversed if the same on the basis of evidence on regard and legal position, represent .....

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.02.2000, 17.04.2000, 15.05.2000, 10.07.2000), Sh. Praveen Teotia - Preventive Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. J.A. Khan (Preventive/ Baggage Officer (accused for abetment of smuggling on 27.02.2000 and 17.04.2000), Sh. Vinod Kumar Kain - Preventive Officer (accused for abetment of smuggling on 15.05.2000, 24.07.2000 and 01.08.2000), Sh. R.K. Dacolia - Protocol Officer (accused for abetment of smuggling on 15.05.2000 and 10.07.2000), Sh. A.K. Varshne .....

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raveen Teotia; Sh. J.A. Khan, Sh. Vinod Kumar Kain; Sh. R.K. Dacolia and sh. D.S. Nandal other than this statement of Sh. R.N. Jutshi, there is no other evidence except that they were posted in the same shift as Sh. R.N. Zutshi and on this basis the Department has alleged these Customs Officers along with Sh. R.N. Zutshi have facilitated the smuggling of Chinese Silk by the Uzbek lady passengers on the dates, as mentioned above. In case of Sh. V.S. Teotia and Sh. A.K. Varshney, there is evidence .....

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r by Afghan National namely.- Mamoor Khan, Dil agha etc. who were receiving the Chinese Silk brought by the Uzbek lady passengers after its clearance without payment of duty. Sh. R.N. Zutshi who in his statement has implicated these seven officers, has subsequently retracted his statement. The allegation made by Sh. R.N. Zutshi against all these seven officers is uniform-negotiating with Sh. Mamoor Khan about the amount to be paid to Customs for facilitating the clearance of the Chinese Silk bro .....

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Zutshi implicating these seven respondents implicating these seven respondents is an exculpatory statement which cannot be acted upon without corroboration by some other independent evidence. In case of Sh. V.S. Teotia and Sh. A.K. Varshney, there is an additional evidence relied upon by the Department that on 09.05.2000, there was a call from the landline telephone installed at their temporary residence to the mobile no. 981113591 of Sh. Mamoor Khan for 2 minutes and 4 seconds. When the landli .....

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f the Uzbek lady passenger. In fact in view of these circumstances only, the Commissioner had decided not to imposed penalty on these officers and in my view the Commissioner's decision in this regard cannot be said to be illegal or improper. 8. Sh. Neeraj Kumar - Preventive Officer (accused of abetting smuggling on 22.05.2000 and 01.07.2000) was exonerated by Commissioner on the grounds that:- (a) He has not been named by the Sh. R.N. Zutshi or any other person as the person involved in the .....

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he call records, his phone was not located at the International Airport but was located elsewhere i.e. at Hyatt, Dayanand Colony, CR Park, Shahbad and Palam Airport. The above facts are not disputed by the Department. Just because between the mobile no. 9811009428, which was in the name of Alok Singh, a relative of respondent Sh. Neeraj Kumar and the mobile number of Sh. Mamoor Khan and Ms Olga Kozireva, there were some telephonic contacts, it cannot be presumed that these telephonic contacts ha .....

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ternational Airport for which there is no explanation. When respondent was admittedly at the Airport, he could not have been used this mobile phone from locations far away from the Airport. In view of these facts and circumstances only the Commissioner has decided not to impose any penalty on this office and this order of the Commissioner cannot be said to be suffering from gross illegality or impropriety. 9. As regards Sh. Kamal Bajaj (accused abetment of smuggling on 01.02.2000), he has not be .....

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s trying to develop Sh. Mamoor Khan as an informer and for this reason only he was making frequent calls to him. While the Commissioner has doubted this explanation of Sh. Kamal Bajaj, he has decided not to impose any penalty on him on the ground that while the telephonic contacts of this officer with Sh. Mamoor Khan and the lady passenger and the statement of Sh. Ajay Dhiman of Kyrgyzstan Airlines give rise to a suspicion about this officer, the same do not establish preponderance of probabilit .....

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ot available for examination as witness. Once the statement of Sh. Dhiman is ignored, what remains is the call records, showing telephonic contacts between him and Sh. Mamoor Khan and Ms Shahlo. But neither Sh. Mamoor Khan nor Ms Shahlo have been questioned with regard to the purpose of these telephonic calls. There is no transcription of these calls and as such the contents of these telephonic contacts is not known. Therefore merely on the basis of the record of telephonic contacts, no adverse .....

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r circumstantial evidence which is not there in this case. In view of this, the Commissioner's order exonerating Sh. Kamal Bajaj cannot be said to be a perverse order meriting interference. 10. As regards Sh. Yashvir Singh- Superintendent (accused of abetment of smuggling on 24.07.2000), Sh. S.D. Raj pa I, Inspector (accused of abetment of smuggling on 04.08.2000), Sh. S.A. Lamb Preventive Officer(accused of abetment of smuggling on 18.08.2000), and Sh. V.K. Bhardwaj - Superintendent (accuse .....

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ut payment of duty. The Telephonic contacts between these officers and Mamoor Khan/Dil Agha/Olga Kozireva are only a few calls from which it cannot be presumed that the telephonic contacts were for facilitating the illicit import of Chinese Silk by the Uzbek lady passengers when the record of telephonic contacts is not corroborated by any other oral or circumstantial evidence indicating the involvement of these respondents in the smuggling activities. For these reasons only the Commissioner in t .....

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eged to have abetted smuggling on 24.07.2000 and 01.08.2000, the evidence relied upon by the Department in support of this allegation is statement of Sh. R.N. Zutshi alleging that he used to negotiate with Sh. Mamoor Khan and Dil Agha for payment to the customs for facilitating smuggling and also one telephonic contact each from his mobile number with Mamoor Khan and Ms Olgha Kozireva. The Commissioner observing that this evidence is not sufficient to establish preponderance probability in suppo .....

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observed that merely on the basis of statement of Sh. R.N. Zutshi, penalty cannot be imposed on the respondents. As regards one telephonic contact each between him and Mamoor Khan and Ms Olga, merely on the basis of the call record it cannot be said that he was in touch with Sh. Mamoor Khan and Ms Olga for facilitating their smuggling activity when no inquiry in this regard has been conducted with Sh. Mamoor Khan and Ms Olga. In view of these circumstances I hold that the Commissioner's deci .....

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er (Technical) Since there is difference of opinion between Member(Judicial) and Member (Technical) in terms of the Provisions of Section 129C(5) of the Customs Act, 1962, the Registry is directed to place this matter before Hon'ble President for either hearing the points of difference as mentioned below, himself or constituting a bench for his purpose:- (1) Whether an application filed by the Revenue under section 129D(4) read with section 129D(1) of the Customs Act, 1962, shall be treated .....

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o all the points relating to various aspects of the case raised in the appeal of Revenue without confining its jurisdiction only to examine whether the illegality or impropriety of the order appealed was examined by the committee? (2) Whether an application filed by a Commissioner under section 129D(4) in pursuance of an order passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the order of the Commissioner. (3) Wheth .....

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Opinion has been referred to me:- (1) Whether an application filed by the Revenue under section 129D(4) read with section 129D(1) of the Customs Act, 1962, shall be treated as, if it were an appeal against the Commissioner's Order, or a revision application confining its scope only to decision on the points of material illegality or impropriety of the order appealed. Or Whether the application filed by the Revenue under section 129D(4) read with section 129D(1) of the Customs Act, 1962 shal .....

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er passed by the Committee of Chief Commissioners/Board under section 129D(1) can be entertained by the Tribunal as an appeal against the order of the Commissioner. (3) Whether on the basis of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them can be said to be suffering from illegality or impropriety and accordingly the Revenue's appeal are to be allowed'; Or Whether on the basis of the evidence on record against each Respondent, the .....

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t each respondent was a member of the abetting team of customs officers, which indulged in smuggling, fraud and connivance and collusion with foreign nationals who arrived repeatedly at short intervals. (iii) The requirement for imposition of penalty is "preponderance of probability", which as ld. Member (Judicial) found, existed in case of the respondent officers. (iv) Para 215 of the Show Cause Notice is not the only Para containing charges against the respondents and that the entire .....

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nd penalty earlier (iv) checking of passengers' passports, (v) checking of baggage tags of passengers and cross checking with the manifest filed by the airlines and (vi) checking of flight boarding passes of passengers who came with the offending goods, were not fulfilled. (vi) The respondents did not act in a prudent manner in the given circumstances. (vii) Commissioner had not taken into account the totality of the circumstances and several vital points linking each of the 14 respondents w .....

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he same goods in commercial quantity on same flights and airlines that shows a clearly thought out pattern for commission of the offence of smuggling. This aspect was clearly ignored by the Commissioner. (x) Respondents were consciously involved as shown not only by the telephonic contacts with the persons involved in the smuggling racket but also by the surrounding set of circumstances. (xi) The original statement of Shri R.N. Zutshi was credible evidence to be used against all the fourteen res .....

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ctory explanation regarding the telephonic contacts and still acquitted them. (xiii) Revenue is not required to prove its case with mathematical precision to a demonstrable degree as it only needs to establish preponderance of probability and cited the judgment of Hon'ble Supreme Court in the case of CIT v. Durga Prasad More [82 ITR 540, 545-47 (SC)], wherein the Supreme held that science has not yet invented any instrument to test the reliability of the evidence placed before a court or a t .....

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State of U.P. [1975 (3) SCC 485 & 498] with regard to the scope these words. (xv) When fraud surfaces that unravels all; Revenue cited judgment of Hon'ble Supreme Court in the case of Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) ELT 460 (SC)] in this regard. (xvi) Also, ld. Departmental Representative states that fraud nullifies everything. He cited the judgment of Hon'ble Supreme Court in the case of Commissioner of Customs v. Candid Enterprises [2001 (130) ELT 404 (SC)]. .....

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sprudence. He cited the judgment in the case of Derry v. Peek [1886-90 (ALL) ER 1)] wherein it was held that fraud is proved when it is shown that a false representation has been made (a) knowingly or (b) without belief in its truth or (c) recklessly, carelessly whether it be true or false. (xix) The respondents acted without diligence or without caution and vigilance and admitted that large quantities of foreign silk textile were cleared as accompanied baggage of passengers, predominantly femal .....

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he respondents is sufficient to penalize them. 3. Ld. Advocates for the respondents individually submitted their defence essentially stating that (i) the retracted statements of Shri R.N. Zutshi cannot be relied upon to penalize them when there is no corroboratory evidence (ii) in some cases where there are telephone contacts with the persons involved in smuggling, the same have been explained and there is no transcript or details of conversation during such telephonic contacts and therefore eve .....

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the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the [Commissioner of Customs] as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under section 128A; (c) an order passed by the Board or the Appellate [Commissioner of Customs] under section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Commissioner of Customs], either before or after the appointed day, u .....

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ot been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made thereunder: Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of .....

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l has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented wi .....

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cating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such [Commissioner] [or any other Commissioner] to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the [Committee of [Principal Chief Commissioner of Customs or Chief Commissioner of Customs]] in its order. [Provided that Where t .....

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mmissioner of Customs or Commissioner of Customs] is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order. 005D (2) The [Principal Commissioner of Customs or Commissioner of Customs] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed a .....

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, as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.] [Provided that the Board may, on sufficient cause being shown, extend the said period by another thirty days.] (4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the [Principal Commissioner of Customs or Commissioner of Customs], makes .....

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ovisions of sub- section (4) of section 129A shall, so far as may be, apply to such application." 5. From the perusal of the aforesaid sections, it is evident that under section 129D, the Commissioner is directed by the Committee of Chief Commissioners to apply to the Appellate Tribunal for the determination of such points arising out of the decision or the order of the Commissioner as may be specified by the Committee of Chief Commissioners in its order and the Appellate Tribunal is to hea .....

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may be specified by the Committee of Chief Commissioners, but also go into the points raised by the respondent in its cross-objections. In other words, the Tribunal is not obligated to confine its scope only to the decision on the points arising out of the order or decision as may be specified by the Committee of Chief Commissioners, but also cover the points raised in the memorandum of cross- objections but in the absence of the cross-objections, the Tribunal is to confine itself only for the .....

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nder:- "From what we have discussed above and on going through the orders passed by the Adjudicating Authority, it becomes manifest that the purported evidence which was led by the Department against these officers was different in nature in respect of each such officer. It was for this reason that cases of all 22 customs officers were taken up and dealt with separately with reference to specific evidence which were put against each of these offices by the Adjudicating Authority. However, t .....

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ith. For this reason alone, we set aside the impugned orders which relate to the 14 customs officers/appellants herein and remit the case back to the Tribunal to decide the appeals qua these 14 customs officers after dealing with merits of each case separately. We hope and expect that the Tribunal shall decide these appeals expeditiously and would endeavour to dispose of the same within six months. Parties shall appear before the Tribunal on June, 13, 2011." [Emphasis supplied] The backgrou .....

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is reproduced below in full for convenience:- "215. From the facts revealed in the investigation as mentioned hereinabove, the details of the relevant date/flight, the quantum and value of silk textiles smuggled, the resultant fraudulent evasion of customs duty, the persons(s) who, jointly or severally, evaded the customs duty and prohibitions, the persons who abetted evasion of the customs duty and prohibitions and person(s) who were concerned in dealing with the smuggled goods on the date .....

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w Not Known 1-2-2000 KGA2001 32272 15,14,474- 9,26,858 Shakista K Kamal Bajaj, Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 27-2-00 HY151 26159 17,78,785- 10,88,616 Olga K and Shakista K Mamoor.Klldll, TRK Reddy, VK. Khurana, Ajay yadav, V.S Teotla, ParveenTeotla J.A. Khan, Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania.Sanjiv Jain, Mahender Jain, Anudeep Singh 10-4-00 K2 545 20696 14,07,355- 8, .....

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2,42,386 1,26,768 1,02,877 1,48,340 Olga K, Nazira I and Shalo A Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 8-5-2000 K2 545 6062 6062 4,12,243 4,12,243 2,52,293 2,52,292 Olga K and Isamu KM Mamoor Khan, SanakShahlo, Nazira I NitishKedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan.Sanak .Nazira I.RNZ .....

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, Nazira, Isamu'KMMi trushov Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 1-7-00 HY 429 8220 5,58,946 3,42,075 Olga K MamoorKhan.Sanak SudhirSharma.Nazir a, NeeraJKumar. Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh ¼ 7-00 9Y 219 14448 9,82,491 6,01,285 Olga K Mamoor Khan, Sanak, Yashpal NitishKedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv J .....

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er Jain, Anudeep Singh 24-7-2000 K-2 545 25630 17,42,840- 10,66,618 Merkulova L Dil Agha, Mamoor Khan, Sanak , Sadullah, ZanjirKhan, TRK Reddy.RNZutshi, Anil Madan Kozireva *Nazira*,*notpaxbut in a'portwith flight Yashvir Singh, VinodKumar(Kain), KanwalSuman, NitishKedia, Anup Singh,Khem Singh, ArunDokania.GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 27-7-2000 PK 270 2467 5991 1,67,742 4,07,374 1,02,658 2,49,313 Olga K Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, V K Kh .....

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np apers VinodKumar(Kain), KanwalSuman, Nitish Kedia, Anup Singh,Khem Singh, ArunDokania.GopalD okania.Sanjiv Jain, Mahender Jain, Anudeep Singh 4-8-2000 PK270 3934 6040 3,35,485 4,10,744 2,05,317-2,51,376 Olga K Nazira I Dil Agha.MamoorKhan, Sadullah, ZanjirKhan VK Khurana, SDRaJp al* NitishKedia, Anup bmgh, Khem Singh, Arun Do-kania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 'comes for night duty and has contacts with OK still at a'port and Shri Dinesh Agarwal Director. 1 .....

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PK-270 6410 4,35,880 2,66,759 Nazira I DilAgha.MamoorKha n.Sadullah.ZanjirKh an,Olga K.Pradeep Rana, SA Lamb, VK BhardwaJ Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 21-8-2000 K-2 545 31425 21,36,878 13,07,759 Merkulova L Dil Agha.MamoorKhan, Sanak Sadullah, Zanji rKhan.R.N.Zutshi, Olga K*,Nazira*,*notpass engerbut assessed. Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain.Anudeep Singh .....

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of third persons in the absence of corroborative evidence cannot be relied upon for imposition of penalties. In the case of Mohtesham Mohd. Ismal v. Spl. Director, Enforcement Directorate [2007 (220) ELT 3 (SC)], it was inter alia held that confession of co- accused cannot be treated as substantive evidence. In the case of Mehui Roadways v. CCE [2009 (246) ELT 660 (Tri. - Ahd.)], CESTAT has held that the statement of co-accused cannot be made as a basis for imposition of penalty unless there is .....

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and imposition of penalty on the appellant would not be justified. As regards the telephonic contacts, in the case of Arvind Kumar Jain v. State of Rajasthan [2015 CRI.L.J. 2908], the Rajasthan High Court held that "in the absence of contents of conversation, mere call records cannot bring complexities of accused in crime and unless phone calls are deciphered into conversation, it cannot be relied upon. Phone call between two persons does not create any suspicion". Thus observing, the .....

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telephonic contacts of Mr. Kamal Bajaj with Mamoor Khan and one telephonic contact with the passenger Ms. Shahlo. Shri Kamal Bajaj on the other hand has contended that he tried to develop Shri Mamoor Khan as an informer and therefore there were frequent calls with him. Even if the explanation/defence of Shri Kamal Bajaj is not entirely accepted, it is pertinent to mention that the statement of Shri Ajay Dhiman apart from being the statement of a third party, cannot be read to convey in any way .....

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o inculpatory statement of Shri Kamal Bajaj and there are no details (transcript) of the conversation of Shri Kamal Bajaj with Mr. Mamoor Khan or Ms. Shahlo available. In these circumstances, holding Shri Kamal Bajaj guilty of abetment of smuggling on the basis of preponderance probability will be tantamount to mis-appreciation of the principle of preponderance probability. In view of this and having regard to the settled jurisprudence with regard to the inadequacy of statement of third party an .....

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stating that these officers were in touch with Shri Mamoor Khan and engaged with him regarding negotiations of the payments to the customs officers for abetting smuggling of Chinese silk by foreign passengers. In case Shri V.S. Teotia and Shri A.K. Varshney, apart from the statement of Shri R.N. Zutshi, there is evidence of record of one telephone call of 2 minutes duration on 09.05.2000 from the land line phone installed at the common residential premises shared by these respondents. There is n .....

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en with due regard to the observations in Para 24 of the judgment of Hon'ble Supreme Court in the case of Dr. NG Dastane v. Mrs. S. Dastane [1975 (2) SCC 326], wherein it is elucidated as to how to arrive at whether the case on the principles of preponderance probability is made. 12. Coming to Shri Neeraj Kumar, I find that he has not been named by Shri R.N. Zutshi or any other person with regard to abetment of smuggling. The only basis on which Revenue has imposed penalty on him is that the .....

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e against Shri Neeraj Kumar falls woefully short to sustain the abetment charge and penalty. 13. As regards Shri Yashvir Singh, accused of abetment of smuggling on 24.07.2000 and Shri S.D. Rajpal accused of abetment of smuggling on 04.08.2000 and Shri S.A. Lamb, accused of abetment of smuggling on 18.08.2000 and Shri V.K. Bharadwaj, accused of abetment of smuggling on 18.08.2000, as recorded by ld. Member(Technical), the only evidence relied upon by Revenue is telephonic contact between their mo .....

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tled in Para 8 above, the allegation of abetment and penalty cannot be sustained against these officers even if they had been named by Mr. Zutshi. 14. Regarding Shri Kamal Suman, the officer has been accused of abetting smuggling on 24.07.2000 and 01.08.2000. Revenue relied upon the statement of Shri R.N. Zutshi that Shri Kamal Suman negotiated with Shri Mamoor Khan and Ms. Dil Agha for facilitating smuggling and also one telephonic contact each from his mobile number with Mr. Mamoor Khan and Ms .....

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ontacts, they have pleaded that sometimes they used to get telephone calls, which they answered and sometimes when telephone calls were missed, they used to call back not knowing who had called. Even at the cost of repetition, I may state that as has been brought out, the only evidence against the respondents are third party statement(s) and details of telephonic contacts (without transcript or details of conversation) and in the wake of the jurisprudence and judicial precedents discussed and an .....

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acy" and "abetment" and I am of the view that notwithstanding of all these judgments, the aforesaid analysis remains valid. In other words, none of the judgments cited by ld. Departmental Representative jeopardize the jurisprudence regarding the efficacy of third party statements and telephonic contacts (without the transcript of the details of conversation) for the purpose of sustaining charge of abetment. I concede the proposition of Revenue that Revenue only has to establish th .....

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