TMI Blog2015 (12) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. Non consideration of CCTV footage by the Appellate Authority - Held that: - the CCTV footage was concealed by the Appellate Authority for the reasons best known to them. Though the burden lies upon the passenger to establish his defence, the Appellate Authority ought to have considered the said electronic evidence also, before penalising the Petitioner. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the adjudicating authority. The charges levelled against were dropped, after considering the implication of Section 51 of the SEZ Act and also the electronic evidence of CCTV footage. Further, there is also a statutory compliance provided under Section 128A(3) of the Customs Act, which the Appellate Authority failed to comply with. Hence, the matter deserves reconsideration and re adjudication, as long as the SEZ Act and the Rules and the Acts relied on by the Respondents are inconsistent with each other. Petition disposed off - matter remanded - opportunity of being heard to be provided to the petitioner. - WP.Nos.11898 and 26133 of 2015 with MP.No.1 and 1 of 2015 - - - Dated:- 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 12 numbers of Gold Bars, weighing 12 kgs to be treated as smuggled goods and proposing confiscation under Section 111(d)(l) of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 and proposing to levy penalty under Section 112(a), to which, a reply was submitted. After hearing the Petitioner, the Joint Commissioner of Customs (AdjudicationAir) (lower adjudicating authority), passed the order dated 12.03.2015, dropping all the charges against Petitioner. As against the same, an appeal was filed by the Respondent Department in No.C4-I/172/O/ 2015-Air before the Commissioner of Customs (Appeals-I), Chennai (Appellate Authority), who on considering the objections of the Petitioner, by the impugned order dated 12.08.2015, ordered for confiscation of the goods and imposed penalty. Hence, the above Writ Petitions have been filed for the reliefs as stated above. 3. The averments of the Respondent Department as set out in the counter affidavit, inter alia, are that on arrival of two passengers Abhishek Betala and Deepak Gheesulal Siroya on12.8.2014 from Dubai, the Customs Officers verified their customs declaration forms and found that Abhishek Betala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of making jewellery and for subsequent re-export and in these circumstances, prayed for quashing of the impugned order dated 12.8.2015 as contrary to Section 51 of the SEZ Act, which provides for overriding effect and consequently for release the confiscated goods. 5. The learned Standing Counsel for the Respondents reiterated the averments made in the counter affidavit and supported the impugned order of confiscation and penalty. 6. This Court heard the learned counsel on either side and considered their rival submissions and also perused the materials placed on record, including the relevant provisions of the Act and Rules. 7. The authorised officers of the Petitioner, namely, Abhishek Betala (Employee (1) for the sake of convenience) and Deepak Gheesulal Siroya (Employee (2) for the sake of convenience) had arrived at Chennai Airport from Dubai on 22.08.2014. On verification of the handbag carried on by the Employee (1) and his declaration form, the bag was found to contain 12 kgs of gold bars and in his declaration form, it was declared as 'Nil'. In the declaration form of the Employee (2), it was declared as 12 Kgs of gold bars and he was not carrying any h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st available opportunity and put the hand bag to the scanning machine near the door frame metal detector and the gold bars were declared in the declaration form of the Employee (2). They did not even try to cross the green channel and they passed through the red channel only. The show cause notice has been issued to the Employee (1), whose name is not mentioned in the detention receipt and the Petitioner Company only. For failure in complying with the provisions of the Rule 29(5) and the facility circular, dated 3.3.2007, action can be initiated only under Section 22 or any other relevant provisions of the SEZ Act. Further, in terms of Section 51 of the SEZ Act, the provisions of this Act shall have overriding effect on any other law. The Petitioner is allowed to import duty free gold freely without any restriction as per the provisions of the Foreign Trade Policy and SEZ Rules, 2006. As confiscation of gold under Section 11(d) and(l) is not sustainable, no penal action can be taken. Observing so, the lower adjudicating authority, dropped the proceedings against the Employee (1) and the Petitioner Company. 11. Section 128(A)(3) of the Customs Act reads as follows:- SECTION 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The crucial question lost at sight off by the Appellate Authority is relating to the Employee (2), declaring in his declaration form as 12 kgs of gold bars and not carrying any hand bag or any gold bars and to the CCTV footage relied on by the adjudicating authority and relating to non issuance of detention receipt to the Employee (1) and the Petitioner Company. 15. Admittedly, the Petitioner is a SEZ Unit and was the consignee of the seized 12 kgs of gold bars as per the invoice dated 21.08.2014 and during the investigation, totally 12 kgs of gold bars were seized. In this regard, a show cause notice under Section 124 of the Customs Act was issued to the Employee (2). Further, the Employee (2), who declared in the quantity column as 12 kgs, should have also carried 12 kgs of gold bars, but strangely, nowhere in the impugned order of the Appellate Authority, it is stated about the Employee (2) carrying, 12 kgs and not issuing a show cause notice to the Employee (2), though the detention receipt was issued in his name. But, it was merely stated that though the Employee (2) declared the goods in his declaration form, but he was not carrying any hand bag and not carrying any g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Employee (1) and the Petitioner Company were made liable to pay the penalty. 17. According to the Respondent Department, the invoice was recovered from the Employee (1) and he did not produce the same voluntarily and there was no proper explanation to the question put to the Petitioner as to whether the Petitioner Company is a SEZ Unit or not or their performance as SEZ Unit and even there was no written contract between the SEZ Unit and the seller of the gold in Dubai. 18. Admittedly, the goods in questions were consigned to the Petitioner as is evident from the invoice dated 21.08.2014 and both the Employee (1) and Employee (2) are the authorised officers of the Petitioner Company, as seen from the various letters of the Petitioner Company. Even according to the Respondents, the Petitioner and the seller at Dubai are related parties. It is also seen from the invoice dated 21.08.2014 given by the seller in Dubai to the Petitioner Company that only the Employee (2) was authorised to carry by hand the 12 kgs of gold bars and that the said goods were supplied free of cost against the gold jewellery to be manufactured and to be re-exported to Dubai. Therefore, according to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification, specify any officer or agency to carry out surveys or inspections for securing of compliance with the provisions of any Central Act by a Developer or an entrepreneur, as the case may be, and such officer or agency shall submit verification and compliance reports, in such manner and within such time as may be specified in the said notification 21(1) The Central Government may, by notification, specify any act or omission made punishable under any Central Act, as notified offence for purposes of this Act. (2) The Central Government may, by general or special order, authorise any officer or agency to be the enforcement officer or agency in respect of any notified offences or committed in a Special Economic Zone. (3) Every officer or agency authorised under sub-section (2) shall have all the corresponding powers of investigation, inspection or search or seizure as is provided under the relevant Central Act in respect of the notified offences. 22. The agency or officer, specified under section 20 or section 21, may, with prior intimation to the Development Commissioner concerned, carry out the investigation or search or seizure in the Special Economic Zone or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(5) of the SEZ Rules, earlier show cause notice was dropped. If at all any proceedings to be initiated, that can be initiated only under the provisions of the SEZ Act and Rules. 24. Even according to the Respondents, Section 51 can be enforced only when the goods are meant for SEZ Unit. In the case on hand, it is seen that the gold bars in question were consigned to the Petitioner Company, which is admittedly a SEZ Unit. Hence, Section 51 can be made applicable to the case on hand. 25. Coming to the issue of non consideration of CCTV footage by the Appellate Authority, it has been observed by the Honourable Supreme Court in Criminal Appeal No.142 of 2015 by judgement dated 20th January 2015 that with the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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