TMI Blog2016 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 against the revenue. - APPEAL NO. C/63/2008, APPLICATION NO. C/M/69/2012 - - - Dated:- 30-12-2015 - D.N. PANDA, JUDICIAL MEMBER, R.K. SINGH AND RAKESH KUMAR, TECHNICAL MEMBER For The Applicant : Promod Kumar, JCDR and Govind Dixit, SDR For The Respondent : Bipin Garg, Piyush Kumar and Prem Ranjan, Advocates ORDER When this batch of 14 appeals of Revenue as tabulated below came up for rehearing under section 129 A of the Customs Act, 1962 (hereinafter referred to as the Act ) pursuant to the order 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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, 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 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 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 expedit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation 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 appearing in Column XE' thereof and a team of Respondent Officers of Customs whose name appears in bold letters in Column 'F' of the said Table were involved and concerned in smuggling of the offending goods came to India on different dates as per column A of the Table. 4.2 TABLE - 1 (Ref:TABLE - 14- Page 176 of OIO) Date Flight Number Silk Textiles not decl. and not assessed. In meters Value of silk Textiles not decl. and not assessed In Rs. Customs duty Evaded In Rs. Person who, jointly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh 15-5-00 K2 545 25630 17,42,840- 10,66,618 Shahlo A MamoorKhan,Sana k, NaziraI, RNZutshl , Yashpal, Vinod Kumar(Kaln), VSTeotia, RK Docoliya , AKV arshney, DSN and al Nitish Kedla, Anup Singh, Khem Singh, Arun Dokanla, Gopal Dokanla, Sanj'Main ,Mahender 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 5,58,946 3,42,075 Olga K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 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 Jain, Anudeep Singh 4-8- 2000 PK 270 3934 6040 3,35,485 4,10,744 2,05,317-2,51,376 OlgaK Nazira I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, VKKhurana,SDRaj pal* Nitish Kedia, Anup Singh, Khem Singh, Arun Do-kania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh *comes for night duty and has contacts with OK still at a'port and Shri Dinesh Agarwal Director. 11/12-8-2000 22668 15,41,424 9,43,351 OlgaK Nazira I DII Agha, Mamoor Khan, Sanak Sadullah, Zanjir Khan, Pradee pRana Nltish Kedla, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, Abdul Qayum, Manager of Sameer Guest House identified photographs of Mamoor Khan as well as his Mobile No. 9811254485 used in smuggling operation. Vivid description about the activities carried out by Mamoor from the hotel and airport was given by him. 4.8 Sri Zutshi, the Customs Officer neatly described about Mamoor Khan and confessed that he had hand in glove with him as well as with other Respondent Officers of Customs to facilitate illegal clearance of the quantity and value of the offending 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s along with the other officers in collusion for which such goods reached Chandni Chowk for sale. 4.12 TABLES -7 appearing at page 128 of SCN shows number of telephonic contacts by Mamoor Khan on different dates with the concerned Officers of Customs. Some of such contacts with number of calls were: (1) to the phones of Kama! Bajaj - 57 calls, (2) Praveen Kumar - 21 calls, (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 from call details obtained by investigation from telephone service providers. 4.13 TABLES -11 appearing at page 132 of SCN shows the time of telephonic contacts by Mamoor Khan with phones of the Respondent Officers e.g., Neeraj Kumar on 22.05.2000 (at Page - 137 of SCN), on 19.06.2000 (at Page - 138 of SCN), and on 01.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Parveen Teotia Preventive Officer Last week of June 1998 to 5th July 2000 27.02.2000 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 Kumar Preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers in the smuggling racket and on 12.07.2001(Ref: Para 162 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. 4.17 One Abdul Qahar who was also a member of smuggling racket was detained in COFEPOSA by order dated 29-01-2001 being involved in smuggling as reported in 2002 III AD Delhi 380, 2002 Cri LJ 1709. Statement recorded from Waliullah on 19.05.2001 before Metropolitan Magistrate u/s 164 of Cr. P.C in State (CBI) V. Olga Kozireva and Others in RC No. 5/2011 revealed manner of disposal of smuggled goods. 4.18 Statement recorded from One Abdul Qahar on 29-1-2001 from Tihar Jail proved nexus of Mamoor Khan and Ms. Olga as well as his stay in Sameer Guest House including his connection with Dil Aga. Print-out relating to call detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntact Mamoor Khan 62 occasions Between 1-4-2000 to 25-7-2000 Dil Aga 18 occasions Between 7-5-2000 to 28-10-2000. Ms. Olga 6 occasions Between 3-2-2000 to 28-8-2000 Nazira 2 occasions 30th August, 2000 Dil Aga 10 Occasions 1-9-2000 Onwards. 4.22 Use of mobile phones for clearing smuggled goods in association with Mamoor Khan and Dil Agha was brought to record by investigation as is evident from the Tables 7, 11 and 12 to the show cause notice as well as Table 2 to 4 aforesaid. This corroborated with oral evidence of Sri R N. 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of Respondent Officers: {1)3 A Khan, (2) D S Nandal, (3) R K Dacoiya, (4) A K Varshney, (5) V S Teotia and (6) Praveen Teotia In clearance of smuggled goods. They were involved in negotiation and settlement of quantum 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 show cause notice at page 136 thereof exhibits that mobile phone of Mamoor Khan was in vicinity of IGI Airport, Delhi from 9.52 A.M. to 12.36 P.M. and such phone was in use for clearance of smuggled goods. Involvement of the respondent Officers as member of the team of smuggling could not be ruled out when they were beneficiary of ill gain. 4.27 Nexus, collusion and association of Respondent Officers with offending passengers resulted in free flow of smuggled goods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,946/- 3,42,075 Olga K Neeraj Kumar. 10-7-2000 K2 545 21,496 14,61,755- 8,94,594/- Olga K V S Teotia, R K Dacollya, A K Varshney, D S Nandal 24.7.2000 K-2 545 25,630 17,42,840 16,66,618/- Mamoor Khan anc Olga K / Yashvir Singh, Vinod Kumar (Kain) and Kamal Suman 1-8-2000 PK270 5,419 5,638 3,68,519 3,83,411 2,25,534/-2,34,648/- Olga K Nazira I VinodKumar (Kain), KanwalSuman, 4-8-2000 PK270 3,934 6,040 3,35,485 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des and evidence, Customs Appeal No C-63/2008 of Revenue against the Respondent Officer Sri Vinod Kumar, is disposed by this common order dealing with the Misc. Application filed by the Respondent Officer as stated at the outset. MISC. APPLICATION NO. C/M/69/2012 7.1 Learned Advocate Shri B.L. Narasimhan, appearing in the appeal No. C/60 of 2008, 67/2008 and 68 of 2008 led by other counsels in different 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 submitted that what is legal and proper was subject matter of scrutiny before the Apex Court in the case of Lachchman Das v. Santosh Singh [1995] 4 SCC 201. Emphasizing Para 7 and 10 of the judgment it was argued that the tests of legality and propriety should meet certain attributes of law. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate 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 no power to touch the observations of Hon'ble High Court but should only carry out all the directions of the Hon'ble Court. 8.4 Placing further emphasis on page 4 of the Hon'ble High Court's order, on behalf of Revenue, ld. DR submitted that appeals of Revenue were before the Tribunal which was allowed by Tribunal for which Hon'ble High Court entertained appeal of respondent. Even in the said page, while the matter received consideration of the Hon'ble High Court, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the remedy prescribed by that statute. Revenue is not made remediless by law by a hyper technical argument advanced 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 that Section 129D of the Act has mandate that satisfaction of the Committee as to prejudice caused to Revenue by the order sought to be appealed is requirement of law to entertain appeal of Revenue by Tribunal. That being requirement of law, Hon'ble High Court has not found fault with the satisfaction of the committee directing a subordinate officer to file appeal on the points referred by the committee before Tribunal for its decision on merits of each appeal without going into the manner of taking decision by the Committee of Chief Commissioners. Decision of the Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for decision to file appeal by department by way of an application with the guidance of Committee of Chief Commissioners so as to protect interest of Revenue. It is hierarchical scrutiny prescribed by a set of procedural law to examine the orders sought to be appealed whether has prejudiced Revenue and appeal should be preferred thereon before Tribunal. Accordingly Revenue should not be denied appeal remedy by misconstruction of law as suggested by respondents. When the Adjudicating 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 present respondents. Tribunal is expected to consider the anxiety expressed by the Committee against adjudication in different paragraphs of the order. That self speaks that the order appealed was neither legal n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, under section 130, as it stood immediately before that day : Provided that 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 importatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee of Commissioners of Customs differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Customs who shall, after considering the facts of the order, if is of the opinion 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 is communicated to the Commissioner of Customs, or as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 decision of Tribunal is desired. The said section reads as under:- SECTION 129D. Powers of Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders - (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating 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 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred on it by law. Its authority is confined to issue administrative direction to subordinate authority to seek appeal against the point or points arising out of an order of a Commissioner 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 adjudicating Commissioner or Commissioner (A), no other authority below Tribunal is vested with the power of review or revision of the order appealed to Tribunal. Accordingly, exercise of Review power by the Committee of Chief Commissioner u/s 129D of the Act is inconceivable. Submission of the Respondent that the order passed by the Committee of Chief Commissioners was in exercise of power of review by that Committee is baseless and devoid of merit. When no power of Review is exercisable by the Committee, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of satisfying itself with regard to the legality or propriety of an order or proceeding taken under the Act to admit a revision empowering the High Court to pass such order in relation thereto as it may deem fit. The High Court was required to interfere with the order in revision if it finds that the order of the appellate authority suffer from a material impropriety or illegality. From the use of the expression legality or propriety of such order or proceedings occurring in sub-section(6) of Section 15 of the Act, the revisional power of the High Court under that Act is wider 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 the aforementioned well-recognized principles, it would amount to equating the revisional powers of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Application being mis-conceived is dismissed. CUSTOMS APPEAL NO. C/63/ SUBMISSIONS OF REVENUE 12.1 It was submitted on behalf of Revenue that the respondent Shri Vinod Kumar (Kain) was brought to charge for the loss of duty caused by him on 10.07.2000, 20.07.2000 and 01.08.2000. Entire charge was also substantiated by cogent evidence proving abatement made by the respondent to clear the smuggled goods. His statement recorded on 12.02.2001 brought out his active role being in shift duty with Shri RN 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 Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He was exonerated from charge under law under flimsy grounds and ill reason. Therefore the adjudication made in his favor deserves to be set aside and penalty imposed on him. FINDING AND DECISION BY TRIBUNAL 15. Heard both side extensively on different occasions and perused the record. 16. Shri Zutshi in his statement dated 17.01.2001 stated that this respondent is one of the officers of preventive, who was negotiating 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 airport as Air Customs Officer. He was in baggage section as well as preventive, courier and adjudication section. He confirmed his residential telephone number to be 6132115 and ruled out use of mobile phone. He also stated that he did not know Ms. Olga and her p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated 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 contacting the offender passengers and the smuggling racket using the offending phones was proved and his concern with smuggled goods was not ruled out. He made all evasive pleas only to escape charge while cogent evidence gathered by investigation brought him to the charge under law. He could not dissociate his close association with the conduits of smuggling for clearance of the offending goods on different dates directly and indirectly. In absence of any cogent and credible evidence to discard allegations 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 Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n came to record. He was not an innocent when he did not explain reasons of telephonic contact with smuggling racket. He also failed to bring the smuggling activity to the notice of higher authority. Smuggling perpetuated due to his deliberate silence. His 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 circumstances as guiding factors to hold many customs officers guilt, he exonerated this respondent Officer from charge for no rhyme or reason. He failed to appreciate that equal law applies equally and unequal law applies equally and telephonic contacts made by the respondent Officer brought him to the grave of the charge like other officers who were penalized in adjudication by such evidence. 29. It has been held by Hon'ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent Officer and without being an innocent he proved his deliberate defiance of law. He merely pretended to be innocent giving evasive reply to investigation to mislead them. 31. The Respondent Officer was made charge free in adjudication on the ground that he was not in touch with Mamoor Khan and Dil Agha by cell phone. This is faulty. Shri R.N. Zutshi made investigation story believable and successful with full trail of evidence without any delink. Respondent was co-sharer of bribe money as per testimony of Shri Zutshi and others. He did not abstain him self from the ill gain but became beneficiary thereof along with other Respondent Officers. It 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 was in touch with the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prejudice to it. He silenced himself without bringing out the 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 officer, brought him to the fold of law. But learned adjudicating authority brushed aside the same drawing misplaced sympathy. Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it- all exactness is a fake . Absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty is practically not possible without hand in glove of the Respondent. Secrecy and stealth being covering guards of ill designed act, it is normally hardship for Revenue to unravel every link of the process. Revenue successfully corroborated mala fide of respondent when material facts relating to the ill design remained in the special or peculiar knowledge of the respondent officer. 38. When fraud surfaces, that unravels all. Revenue's stand is fortified 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 of the offence were in close connivance with the batch of Customs Officers with whom Respondent was associated. The Apex Court in the case of S.P. Chengalavaraya Naidu v. Jagannath AIR 1994 SC 853 and in the case of Ram Preeti Yad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 officers and perpetuated smuggling. It is established principle of law that fraud and justice are sworn enemies. A person acting in defiance of law and without being vigilant has no right to claim innocence when he did not abstain himself from wrong doing against Revenue and caused prejudice to it. Accordingly conclusion of the learned Adjudicating Authority in favor of the Respondent officer is detrimental to the interest of justice. 43. There were cogent evidence gathered by investigation to appreciate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- Appeal of revenue is allowed to this extent. Rakesh Kumar : I have gone through the orders in respect of the Revenue's Appeals prepared by my learned brother. Since I do not agree with the conclusions arrived by him, 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 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 of these officers. 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 officers by the Adjudicating Authority. However, the CESTAT went ahead with the presumption that role of each offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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-Nazira, Ms Kshakista, Ms A-Shahlo, Ms Merkulova and Ms Valichinco, while coming to Delhi from Uzbekistan by Kyrgyzstan Airlines were bringing huge quantity of Chinese Silk which was being cleared from the Customs without payment of Custom Duty and this smuggling was being organized by some Afghan Nationals namely Sh. Mamoor Khan, Sh. Dil Agha, Sh. Sanak Khan, Sh. Sadullah and Zanjir Khan who are alleged to be in connivance with some Customs Officers posted at the Airport namely Sh. Sudhir Sharma, 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 of Kyrgyzstan Airlines. The next category of persons in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ybody. Sh. V.S. Teotia-PreventiveOfficer posted at Delhi Airport from 1998 to 5,h July 2000. 27.02.2000, 17.04.2000, 15.05.2000, 10.07.2000 (Landline) 6984235 A telephonic call on 09.05.2000 from landline phone 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, posted last week of June 1998 to 5lh July 2000. 27.02.2000 17.04.2000 (Mobile) 9810041291 NIL Same as above Sh. J.A. Khan Baggage Officer 27.02.2000 17.04.2000 NIL NIL Same as above Sh. Vinod Kumar Kain - Preventive Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provisions of Custom Act, 1962 is preponderance of probability and not the proof beyond any reasonable doubt , has held that the evidence on record against these Respondents is not sufficient to establish the preponderance of probability in support of the allegation of abetment on smuggling against them and on this basis has dropped the penal proceedings against them. The Department's Review Appeal is on the ground that the evidence on record is sufficient to 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 material illegality or impropriety and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee under section 129 A(1). It was, therefore pleaded that 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 order has not accepted this plea of the Revenue and has decided that the plea about maintainability of the Revenue's appeal, which is sought to be made through Miscellaneous Application filed by the Respondent has to be considered. I fully agree with this view of my learned brother as the issue raised goes to the root of the matter and being a legal issue, it can be raised at any stage of the proceedings. However, my learned brother has expressed the view that the appeal by the Revenue under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against order passed by the Commissioner (Appeals) can be filed by the Authorised Officer only if the Committee of Commissioners is of the opinion that the order passed by the Commissioner (Appeals), is not legal or proper or if there is difference of opinion between Commissioners constituting the Committee, on reference made to the Jurisdictional Chief Commissioner, the Chief Commissioner is of the opinion that order passed by the Commissioner (Appeals) 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 Commissioner's order is not legal and proper or in case of difference between the two Chief Commissioners constituting the Committee, the Board, is of the view that the Commissioner's order is not legal or proper and the Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 totally ignoring some points of the facts or point of the law placed on record and which were not considered at all or the fine or penalty imposed is either far too low looking to the gravity of the offence or is highly disproportionate to the nature and gravity of the offence. In my view it is only such points of patent and material illegality or impropriety which can be raised in the appeals filed by the Revenue whether under section 129 A(2) on the basis of the authorization given by the Committee 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 Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action by directing the commissioner to file an application under section 129D(4) to the Tribunal for correct determination of the points arising out of the Commissioner's order, as mentioned in the order issued under section 129D(1), exercised by the Committee 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 case of CCE v. M.M. Rubber 1991 (55) ELT-289 (SC) in para 18 of the judgment has held that the power exercisable under section 35E of the Central Excise Act, 1944 (which is in pari materia with the provisions of Section 129D(1) on Custom Act, 1962) is a power of superintendence conferred on a superior authority to ensure that subordinate officers exercise their power under the Act correctly or properly and accordingly the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the powers, under Article 227 must be sparingly exercised and should be exercised to correct the errors of jurisdiction and the like, but not to upset pure findings of fact which falls in the domain of appellate court only. The ratio of the above judgments of the Apex Court is applicable ;to the exercise of power under section 129D(1) by the Chief Commissioner/Board. 5.1.4 Since the scrutiny of an order passed by a Commissioner of Customs by the Committee of Chief Commissioners under section 129D(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 points in respect of which, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the points of illegality or impropriety in an order passed by the Commissioner 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 through the order under section 129D(1) passed by the Committee of Chief Commissioners, I find that the order does not mention at all any points on which the Commissioner's Order is not legal or proper. The order passed under section 129D(4) simply expresses another view based on the same set of facts and on that basis authorizes the commissioner to file appeal before the CESTAT. In this regard the last two paragraphs of the order passed by the Committee of Chief Commissioners are reproduced below:- In view of the overall facts and perspective, order merits review on the basis of evidence on record for confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the 14 customs officers (Respondents) who had been exonerated by the adjudicating authority. 6. Even if these appeals filed by the Revenue are treated as valid, as discussed above, their scope is confined only to the points in respect of which the Commissioner's decision, according to the opinion of the Committee of Chief Commissioners, is illegal or improper, or in other words, is perverse. In these appeals the Commissioner'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 a plausible view and as much, do not suffer from patent perversity. 7. Coming to the evidence on record against individual officers, relied upon by the Department in support of its allegation of abetment of smuggling and on the basis of which, accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout 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 brought by the Uzbek lady passengers. This allegation of Sh. R.N. Zutshi remain an un- substantiated allegation when no inquiry in this regard has been made with Sh. Mamoor Khan and there is no other evidence. In case of V.S. Teotia and Sh. A.K. Varshney, while they have been accused of abetment of smuggling on 10.07.2000 also, their posting at Delhi Airport was till 05.07.2000 and there is no explanation as to how they could have abetted smuggling on 10.07.2000. Moreover, the statement of Sh. R.N. 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, as per the call records, on 22.05.2000 and 01.07.2000 when the telephonic contacts had been made, at the time of calls while the officer was on duty at the International Airport, the telephone as per the call records was located in areas far away from the International 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 been named by Sh. R.N. Zutshi. The evidence relied upon by the Department against him, is:- (a) Statement of Sh. Ajay Dhiman, Supervisor in Kyrgyzstan Airlines, stating that he used to be in touch with Sh. Mamoor Khan and he had heard Sh. Mamoor Khan saying that the shift of Sh. Kamal Bajaj is very good; and (b) 56 telephonic contacts of the respondent with Mamoor Khan and one telephonic contact with the passenger Ms Shahlo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (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 (accused of abetment of smuggling on 18.08.2000), the only evidence relied upon by the Department against these officers is telephonic contacts between their mobile numbers and the Mamoor Khan/Dil Agha /Olga Kozireva. These officers have not been named by Sh. R.N. Zutshi or by any other person as involved in abetment of smuggling. There is neither allegation, nor evidence to show that these officers had personally examined the baggage of the Uzbek lady passengers and had facilitated its clearance without 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 the impugned order ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above discussion, the appeals filed by the Revenue are dismissed. (RAKESH KUMAR) Member (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 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 shall be treated as if it were an appeal against the order of the Commissioner, under section 129A(1) of Customs Act, 1962 and the Tribunal, while deciding such appeal can go into all the points relating to various aspects of the case raised in the appeal of Revenue wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence on record against each Respondent, the Commissioner's findings exonerating each of them are legal and proper and accordingly the Revenue's appeal are to be rejected. 2. Ld. Departmental Representative for Revenue argued the case in detail and then submitted written submissions on 09.11.2015 contending as under:- (i) Regarding point Nos.1 and 2 of the difference of opinion, the judgment of Delhi High Court in the case of CST v. L.R. Sharma [2014 (35) STR 3(Del.)] has settled the issue. (ii) Ld. Member (Judicial) has found that 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 Show Cause Notice has to be taken into account to decide the matter of imposition of penalty on the respondents. (v) The Commissioner fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 tribunal. Therefore, the courts and tribunals have to judge the evidence before them by applying the test of human probabilities. The test of preponderance of probability was not applied by the Commissioner. (xiv) Ld. Departmental Representative referred to various dictionary meanings of collusion , connivance and conspiracy and cited the judgments of the Hon'ble Supreme Court in the cases of Subhas Chandra v. Ganga Prasad [AIR 1967 SC (878)] and Shri Ram v. 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) EL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alysis of evidence against individual respondents during the discussion below. 4. I have considered the contentions of both sides. As regards point (1) and (2) of the difference of opinion, the provisions of Sections 129A(1) and 129D(1) and (4) are reproduced below:- 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of 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, under section 130, as it stood immediately before that day: [Provided that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er] [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 the Committee of Chief Commissioners of Customs differs in its opinion as to the legality or propriety of the decision or order of the [Principal Commissioner of Customs or Commissioner of Customs], it shall state the point or points on which it differs and make a reference to the Board which, after considering the facts of the decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs], if is of the opinion that the decision or order passed by the [Principal Commissioner 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 exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al as if it were an appeal. The respondent can file cross-objections against any part of the order appealed against. The Appellate Tribunal can not only go into points arising out of the decision or order as 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 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. 6. As regards point No.3 of the difference of opinion, at the very outset, it is pertinent to state that the Tribunal while passing the order giving rise to the difference of opinion with regard to penalties on the respondents, acted in pursuance of the observations of the Hon'ble Delhi High Court which in its order dated 23.05.2011 obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty and prohibitions and person(s) who were concerned in dealing with the smuggled goods on the date/flight are given in table 14 below;- Date Flight Number Silk Textiles not decl. and not assessed. In meters Value of silk Textiles not decl. and not assessed In Rs. Customs duty Evaded In Rs. Person who, jointly or severally evaded duty on the illicit import Persons whoabetted 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, Naztra I and Shakista K Not know Not known 17-9-99 PK814 4546 3,09,125 1,89,185 Dlga K Not know Not Known 1-2-2000 KGA2001 32272 15,14,474- 9,26,858 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12,44,155 7,61,423 Olga K Nazira I and Shahlo A Mamoor Khan, Sanak TRKReddy, Sudhlr Sharma, Neeraj Kumar Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 12-6-00 K2 545 30840 20,97,120- 12,83,437 Olga K and Velichko MamoorKhan, Sanak , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11/12-8-2000 22668 15,41,424 9,43,351 Olga K Nazira I Dil Agha.MamoorKhan, SanakSadullah.Zanji rKhan.PradeepRana NitishKedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 14-8-2000 K-2 545 18496 12,57,755 7,69,746 Merkulova Dil Agha.Olga K'Naziral*, *notpassengersbuta ssessed. Mamoor Khan, SanakSadullah, Zanjir Khan, Pradeep Rana NitishKedia, Anup Singh, Khem Singh, Arun Dokania, GopalD okania, Sanjiv Jain, Mahender Jain, Anudeep Singh 18-8-2000 PK-270 6410 4,35,880 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rajasthan High Court quashed even the framing of charges. In the case of Kalyanasundaram v. Inspector of Police [MANU/TN/1363/2014], the Madras High Court observed that talking to each other over phone cannot prove anything beyond that much. 9. In the case of Kamal Bajaj, Revenue relied upon the statement of Shri Ajay Dhiman, Supervisor in Kyrgyzstan Airlines stating that he had heard Shri Mamoor Khan saying that the shift of Shri Kamal Bajaj was very good and also on the fact that there were 56 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shi who in his statement had implicated these seven respondents, subsequently retracted his statement. Thus, as has been analysed and brought out in Para 8 above, these are totally inadequate to sustain the charge of abetment even on the basis of preponderance of probability even 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 there were 25 telephone contacts between him through his mobile number with Mr. Mamoor Khan and one telephone contact with Ms. Olga. But, it is also not disputed that on 22.05.2000 and 01.07.2000, when he was posted in airport, his cell phone's location was elsewhere. The said cell phone was not in the name of Shri Neeraj Kumar; it was in the name of Mr. Alok Singh with whom no enquiry was made. Thus, in the wake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 analysed in Para 8 earlier, these are insufficient to sustain charges of abetment even on the principle of preponderance of probability. Therefore, it is not necessary for me to discuss in greater detail the contentions and arguments put forth by the respondents in their defence. 16. I have perused the judgments cited by ld. Departmental Representative with regard to preponderance probability and the scope of the words connivance , collusion , fraud , conspiracy 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 the case on the principle of preponderance of probability (and not on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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