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Ciabro Alemao, Joaquim Alemao Churchill Alemao, Anthony John Rodrigues, & Subhash Pandey Versus The Commissioner of Customs

2017 (10) TMI 521 - BOMBAY HIGH COURT

Smuggling - Gold - contraband item - Whether in the facts and circumstances of the case the findings imposing penalty rendered by the Commissioner of Customs-Respondent No.1, and CESTAT are perverse as they are based on the statements of three eye witnesses to the incident, viz., Vincy, Baptista and Sebastian, who were not allowed to be cross-examined by the Appellant? - Held that: - Section 111 of the Act lists the goods liable to confiscation. Section 112(a) of the Customs Act, set out abo .....

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said to be relevant, does not mean it is proved. That statement, like all testimony, must be subjected to the rigours of cross-examination, to be drawn into the evidentiary pool to form a basis for reasoning or conclusion. Section 138B does not say, and could not say, that statements can be taken as proved even without cross-examination. This, however, is how the CESTAT has misunderstood the section. All that the section says is that for want of production of a witness, his Section 108 statemen .....

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not possible to hold that the word ‘proceeding’ excludes departmental adjudication proceedings. Indeed, even the CESTAT did not think so, and we see no reason to consider this plea now - Consequently, if there were gaps, retractions and inconsistencies, and even if the Section 108 statements of the three witnesses (Vincy, Sebastian and Baptista) were relevant, those statements demanded proof and corroboration. They could not, on their own, and without the witnesses being made available for cross .....

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UTAN D SARDESSAI, JJ APPEARANCES FOR THE APPELLANT: Mr. J. Supekar, Advocate FOR THE RESPONDENTS: Ms. P. Kamat, Additional Government Advocate JUDGMENT (per GS Patel J) A. PREFATORY 1. The factual background to these appeals is startling, and reads like a script for a high-octane action movie: a daredevil customs officer, allegations of gold smuggling, dinghies arriving on a deserted south Goa beach and offloading cargo said to contain contraband gold, a group of men alleged to be smugglers, som .....

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et, while there is no dearth of distractions, the common issue in law in all five appeals is very narrow indeed: without any seizure or confiscation of the alleged contraband gold, i.e., without it being available and in hand, and based only on the evidence of three witnesses who were not allowed to be cross-examined, could the authorities ever have embarked on and concluded any penalty adjudication proceedings for its improper importation under Section 112(a) of the Customs Act, 1962? There are .....

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tement by one officer who plays a central role, viz., that his experience when once he claimed to have held the contraband allowed him to depose to its aggregate value, that the entire edifice of the order is founded. If once there was a witch-hunt against this officer, as he contends, it rather seems to us to now be full-tilt in reverse, with the authorities grasping at any straw. We do not believe that the provisions of the Customs Act, given their ambit, purpose and scope, can be interpreted .....

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-harvesting opportunities squandered, or missed, or allowed to be lost. Today, these holes and gaps in the Customs case are sought to be covered up by obtuse and oblique inferences and suggestions. This is not a case of circumstantial evidence. It is a case of no evidence at all sought to be supplanted by argument and supposition. A statute like the Customs Act is founded on evidentiary certainty. That fundamental cannot be jettisoned under any circumstances. 3. There is a popular impatience wit .....

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depart, and depart most determinedly, from the pot-boiler trajectory of the narrative and its parallels to cinema and fiction. We do not, and cannot, endorse the view that because of the glacial pace of the legal system - this case has been nearly three decades in the making - it is perfectly all right for courts to endorse actions beyond the frame of the law. No amount of dashing derring-do will substitute for evidence or excuse a departure from the rigours of the law s mandated processes. The .....

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t aside the impugned orders. B. FACTUAL BACKGROUND 5. The appeals all challenge the order and judgment dated 13th December 2004 of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT , the Tribunal ), West Regional Bench, at Mumbai, dismissing the Appellants appeals, five in all. Appeals Nos. C/28 to C/32 of 1995. Those appeals came up from an order-in-original dated 14th October 1994 passed by the 2nd Respondent, the Collector of Customs ( the Collector ). Order in original No 15/ .....

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be cross-examined by the Appellant? 7. As we have noted, there are other subsidiary questions implicit in this question of law, and we will identify and address those as well. 8. First, as to the Appellants. Churchill Braz Alemao is a former Chief Minister of Goa. Ciabro and Joaquim are his brothers. There was another brother, Alvernaz; his death on 16th May 1991 is part of this saga. Anthony John Rodrigues worked for Alvernaz. Subhash Pandey was employed by a company engaged in the constructio .....

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story opens, these were not yet as developed or touristfriendly as they are today. Between the burgeoning township of Margao and Varca/Fatrade lay sleepy hamlets with narrow village roads, some of which meandered to the beaches and seashore. 10. In the summer of 1991, Costao Fernandes ( Fernandes ), an Intelligence Officer attached to the Rummaging and Intelligence Wing of the Customs House at Mormugao, is said to have received credible information that the Alemao brothers, including Churchill, .....

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he Alemaos. 11. On 15th May 1991, Fernandes hid his motorcycle in some shrubbery and went on to a vantage point near the beach. Construction was on even at night. The site was lit. At about 8:30 pm, in Fernandes telling of it, he saw Joaquim Alemao, Ciabro Alemao and Alvernaz Alemao arrive at the site. At about 11 pm, Joaquim and Ciabro Alemao went towards the sea. They returned, and left the site in their vehicles. Anticipating a return, Fernandes stayed on site. Dawn broke; the morning of 16th .....

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car no DAC 5942 and a black Fiat car at the site. The cars all had dark tinted glasses. 13. Fernandes claims he saw Ciabro Alemao and two canoes with outboard motors approaching Carmona Beach from the high seas. At noon, the canoes touched shore. Each carried four or five persons. They were offloading boxes that looked like heavy-duty vehicle batteries from the canoes. These were apparently of some weight, and had to lifted with bamboo poles and oars. Fernandes recognized Alvernaz Alemao driving .....

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Contessa. It was forced to slow behind a heavier vehicle; there was not enough room for the Contessa to pass. Fernandes sped past the car, swerved in front of it, and tried to block it. He called out to Alvernaz, who, recognizing Fernandes, accelerated and tried to run him over. Fernandes vaulted off his motorcycle. The Contessa rammed into it and mangled it. The two vehicles were damaged, and entangled. Fernandes opened the car door and prevented Alvernaz from driving away. They struggled over .....

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have opened the boot of the Contessa. After rummaging through the boxes, he claims to have removed what was, in his opinion, a gold biscuit or bar. He claims he displayed it to the public that had by then gathered around the vehicle. He declared it to be smuggled gold. Fernandes said he was refused assistance by the locals in safeguarding the contraband. He saw a motorcycle approaching. Fearing this to be an Alemao accomplice, he fled the scene after deflating two of the Contessa s tyres. He lef .....

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had detained a vehicle with contraband goods near the Ramada Hotel at Varca. The Customs staff rushed to Varca at around 1:45 pm, to find the Contessa parked off the road at Gunneavaddo. There was no one in the car. There was nothing in the boot, which had been left open. 16. Subsequent investigations made the claim that Joaquim Alemao, Ciabro Alemao, Reginaldo Rodrigues, Romeo, Roy Miranda, Anton Fernandes, and others came to the spot where the Contessa was, opened its boot, removed the gold an .....

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oss-examination of 38 witnesses. Only 11 were produced. 19. In 1994, a Customs Case was filed against the Appellants before the Chief Judicial Magistrate for offences punishable under Section 135(1)(i) of the Customs Act, read with Section 3 of the Import and Export Control Act, 1947 and Sections 186, 201, 206, 379 and 120(B) of the Indian Penal Code. 20. On 6th August 1994, the Sessions Court, North Goa, framed charges against Fernandes under Section 302 of the Indian Penal Code for the murder .....

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n Joaquim; ₹ 50 lakhs on Churchill; ₹ 1 lakh each on Roy Miranda and Anton Fernandes; ₹ 50,000 on Anthony Rodrigues; and ₹ 5 lakhs on Subhash Pandey. The Collector also ordered the confiscation of the Contessa, the Maruti and the Scooter. The Appellants filed an appeal to the CESTAT on 20th January 1995. 23. Fernandes, still facing criminal prosecution, claimed protection under Section 155 of the Customs Act. The Session Court rejected the application on 8th June 1995. Fe .....

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17th July 2003. Union of India v Churchill Alemao, (2009) 245 ELT 137.The Union of India filed a Special Leave Petition, and that came to be dismissed on 16th April 2004. 25. On 13th December 2004, the CESTAT passed the impugned order, dismissing the Appellants appeals. On 3rd January 2005, the Deputy Commissioner of Customs (Preventive), Custom House, Mormugao, Goa, served letters on the Appellants under Section 131 of the Customs Act, 1962, calling upon the Appellants to pay the penalties. A d .....

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ason for the latter, the dismissal of the Customs Case, is that the contraband in question was not produced at all. As we shall see, this is pivotal to the present case, for this lacuna continues, and is sought to be covered up by a reliance on some observations of the Supreme Court in Fernandes entirely separate case regarding the homicide charges against him. C. QUESTIONS RAISED 27. The substantial question of law framed at the time of admission, read in context, throws up subsidiary questions .....

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have used the observations of the Supreme Court in Fernandes homicide case (Criminal Appeal No. 242 of 1996) to which the Appellants were not parties, and in which the question of alleged smuggling was at best part of the factual narrative, to substitute as actual proof of contraband, and to make up for the non-availability of the contraband? (d) Could the CESTAT have given any credence to retracted statements under Section 108 of the Customs Act, in absence of cross examination of the abscondin .....

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. Date Recorded statement under Section 108 of the Customs Act Cross examination conducted 1. 25 May 1991 Costao Fernandes Yes 2. 22 August 1991 Gurudas Naik Yes 3. 5 June 1991 Lily D Silva Not attended 4. 29 May 1991 Sharanappa Mallappa Padagad s Not attended 5. 30 May 1991 Mallappa Bramappa Mather Not attended 6. 21 May 1991 and 9 July 1991 Vincy Soares Undelivered summons 7. 31 July 1991 Alex Rasquinha Yes 8. 13 July 1991 Baptista Fernandes Undelivered summons 9. 17 July 1991 Sebastiao Sagrad .....

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ly 1991 Eknath Verenkar Not attended 19. 8 June 1991 H. Padmanabha Pai Not attended 20. 6 July 1991 Cruz Rodrigues Yes 21. 2 July 1991 Sergio Almeida Yes 22. 13 June 1991, 22 August 1991, and 29 August 1991 Churchill Alemao Accused 23. 11 June 1991, 19 June 1991, 26 July 1991, 30 July 1991, and 1 August 1991 Joaquim Alemao Accused 24. 10 June 1991, 13 June 1991, 15 July 1991, 19 August 1991, and 22 August 1991 Ciabro Alemao Accused 25. 30 August 1991 Anthony John Rodrigues aka Reginald Rodrigues .....

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s cross-examination at his personal hearing on 7th June 1994, Luis claimed to not remember the exact date of Ciabro Alemao s visit. Gurudas Naik claimed to have been approached by Fernandes, and given a chit containing the numbers of the Customs Office, Mormugao and he delivered this to Fernandes wife. 30. Vincy Soares is one of the witnesses who claims to have seen Joaquim, Ciabro, Reginald, Roy Miranda, Anton Fernandes, among others, arrive at the scene of the accident after Fernandes left. He .....

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aid. Veny Fernandes and Francis Correia narrated a similar chain of events. 31. John Arcanjo Rebello said that on 16th May 1991, when he was standing outside Roy Miranda s house, he saw Gongrette arrive at that house on a scooter. At Roy Miranda s request, he helped them carry a battery-type box from the scooter to the verandah of the house. He stated he was unaware of the contents. During his personal hearing on 5th July 1994, he claims that on 16th May 1991, and even later, he did not meet Roy .....

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az being attended to by Dr. Alvaro. He denied forcing open the boot of the Contessa. Similarly, on being told about his brother s condition, Ciabro too rushed to the spot of the incident. En route, he saw his brothers at Dr. Furtado s house. He denied that he visited Luis Bar on 16th May 1991. E. FINDINGS 33. What, if anything, is to be made of all this? We must be mindful of two cardinal aspects: first, that we are concerned with an adjudication and penalty case; and, second, that we are constr .....

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tracted his statement that he was threatened by Ronnie Rodrigues. All that this shows as undisputed, is that Alvernaz and Alemao were at the construction site on 16th May 1991. As against this, the only evidence that canoes approached the shore and something alleged to be contraband was being smuggled was that of Fernandes. It is impossible to conjecture that statements were withdrawn or changed due to influence or pressure. 35. Vincy, Baptista and Sebastiao are the witnesses to whose evidence w .....

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esses have made any mention of the only item in question: the gold biscuits Fernandes said he displayed. That is our only focus, and we are most emphatically not concerned with Costao Fernandes moral imperatives or the moral ambiguities of those he accuses. Even the witnesses said to have seen the battery boxes being unloaded from the Contessa boot speak only of two such; Fernandes claims there were four. 36. A Show Cause Notice is issued under Section 124 of the Customs Act before an order of c .....

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the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned, be oral. 37. The Show Cause Notice dated .....

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goods, etc.- Any person- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under secti .....

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lue stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference .....

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f concealing, removing, etc., so we will proceed on the basis that the goods in question need not be in hand, so to speak; they must nonetheless be shown to have existed, and this is a fact that must be proved. Under Section 2(17), examination is defined in relation to any goods to include measurement and weighment thereof. Section 14 of the Act speaks of valuation of goods for assessment of customs duty payable based on the value. The value is determined at the offer or price of sale of the goo .....

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that in his vast experience, when he lofted one of the gold bars he (and he alone) claims were there, he estimated its value, purity, weight, and that of the whole cargo. Fernandes also accepted that the presence of gold in the other boxes was unascertainable as did not open these. He extended his assumption to all boxes. There is no valuation report. There is no chemical or other analysis. All we have is Fernandes statement. That is all. That is, indeed, the whole of it. Testing gold is a scien .....

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itnesses did not present themselves for crossexamination: Vincy Soares; Sebastiao Fernandes; Sharanappa Mallappa Padagad; Mallappa Mather; Lily D Silva; Padmanabha Pai; Shalini Peter; Quiteria D Silva; Tereza Mergulhao; and Baptista Fernandes. The Collector maintains that the Customs Department made all reasonable efforts to secure the presence of the witnesses. The three witnesses key to our discussion, Vincy Soares, Baptista Fernandes and Sebastiao Fernandes, never received a summons. They wer .....

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of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court co .....

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added) 42. The CESTAT confused the issues of relevance and proof. A statement may be relevant, but it yet needs to be proved. The fact that a statement is made and recorded, and is statutorily said to be relevant, does not mean it is proved. That statement, like all testimony, must be subjected to the rigours of cross-examination, to be drawn into the evidentiary pool to form a basis for reasoning or conclusion. Section 138B does not say, and could not say, that statements can be taken as prove .....

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for cross-examination, though asked for, amounts to a clear breach of natural justice. In Union of India v TR Varma, [1958] 1 SCR 499 in paragraph 10, the Court held : it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no .....

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n a criminal case is not enough to hold that penalty imposed in the departmental proceeding cannot be sustained. However, the Tribunal did not consider the judgment in its entirety or in its correct perspective. What the Court held was that a penalty could not be imposed by relying only on the statement of one person who was unavailable to ascertain the correctness of that statement. In these circumstances, it is difficult to uphold the orders passed by the three authorities below imposing penal .....

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w. 45. In Krishan Dayal v Chandu Ram, (1969) ILR Delhi 1090 it was held that a statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. Further, every .....

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der? This is the 20th February 1996 judgment of the Supreme Court quashing the prosecution against Costao Fernandes for the murder of Alvernaz Alemao. Costao Fernandes v The State, etc., (1996) 7 SCC 516. The Supreme Court lauded Fernandes efforts against smugglers in the larger interest of society. In its judgment, the Supreme Court did not, and could not have, pronounced on the factum of smuggled gold. The issue before the Supreme Court related to the protection afforded by Section 155 of the .....

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be smuggled gold, and therefore nothing remained to be established. 47. What the Supreme Court said was actually this: 8. None of the aforesaid has legs to stand, as would appear from what is being stated later. A biased investigation of the type at hand from the CBI has indeed pained us, because people of this country have still high hopes from it, which would get dashed if bias creeps in its investigation. But then, the deceased was no ordinary mortal, as he was a brother of the one time Chief .....

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skin, but could not have saved the larger interest of the society and nation, which does lie in preventing smuggling. The appellant showed valour not in taking to heels, but in fighting. We have all praise for such an officer and we would not allow him to be prosecuted, much though the smugglers would want it to be so. Indeed the appellant is being persecuted, not prosecuted, as the action smacks of revenge seeking to take his life because he has taken the life of a smuggler; of course, one clos .....

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h the presence of gold in the battery-type boxes in the Contessa s boot. That question was never before the Supreme Court for decision. 49. The CESTAT approached the matter thus: 24. We have heard both sides extensively. There is no gainsaying the fact that the evidence in this case is only circumstantial. ... ... 25. The circumstances under which the battery type boxes were removed clearly indicate that the boxes contained something very valuable. Nobody would have bothered to remove some trash .....

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prepared to share it with Costao. The Supreme Court also believed that gold worth ₹ 8 crores was being smuggled in the car. The evidence before the Apex Court is no better or worse than what we have before us in this regard. It is therefore safe to rely on the findings of the Apex Court that the car was carrying gold. 50. As an instance of completely and materially misdirecting itself, it is difficult to conceive of a better instance than this. The CESTAT was right in this much: that the .....

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ion 155. 51. Indeed, there is material in the narrative that this very lack of material in the context of a Customs Case, did not move the Supreme Court to hold as the CESTAT now has. Consider, first, the findings of this Hon ble Court in the Criminal Revision Application No 8 of 2001: Union of India v Churchill Alemao. (2009) 245 ELT 137 : 2003 SCC Online Bom 1294. There, this Court said: 4. The learned Trial Court discharged the Complainant/Accused on the grounds:- (i) that the prosecution had .....

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t to corroborate the statement of P.W. 5, Costao Fernandes, that he had shown one gold biscuit to the persons who had assembled at the spot. (v) the evidence of P.W. 4, Vincent Soares, was not corroborated by any other witness. (vi) that no seizure has been effected to prima facie prove that gold was smuggled and the same was found in the possession of the Accused, (vii) there was a contradiction in the evidence of P.W. 4, Vincent Soares and P.W. 5, Costao Fernandes, regarding the number of boxe .....

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e of the accused, Churchill, was unwarranted. That order of the High Court has attained finality. Its findings are directly relatable to the ones raised here; and yet the CESTAT chose to ignore them. Almost exactly the same considerations as arose in the Customs Case arise here; and there is today no better answer than there was in 2003. 53. In Quinn v Leathem Lord Halsbury [1901] AC 495; See also The State of Orissa v Sudhansu Sekhar Misra and Ors., AIR 1968 SC 647 famously said: that every jud .....

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dded) 54. In Union of India and Ors v Dhanwanti Devi and Ors (1996) 6 SCC 44 it was held that the only thing in a decision that binds a party is the principle upon which the case is decided and that it would not be profitable to extract sentences from a judgment and build upon it. The essence of a decision is its ratio and not its every observation. A binding precedent is the question the court actually decides. 55. The contention of the Learned Counsel for the Appellants that Section 138(B) of .....

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tion 108 statements of the three witnesses (Vincy, Sebastian and Baptista) were relevant, those statements demanded proof and corroboration. They could not, on their own, and without the witnesses being made available for cross-examination, survive the tests we demand of proof. F. THE INAPPROPRIATE LANGUAGE OF THE CESTAT ORDER 57. The language of the CESTAT order is to be deprecated. We do not appreciate its tone or tenor, and even less its palpable derision and condescension. Take paragraph 3 o .....

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te lack of understanding of the fundamentals of a democratic republic governed by the rule of law than he imagines. 59. It does not end there. Fernandes is described as a lone ranger and a one man army . This is law, not a film script. Then, in paragraph 8, a conclusion is reached before the facts are marshalled. And then this, in paragraph 10: 10. Costao intercepted the car at Varca village, jumped into the front seat and requested the driver, Alvernaz, to stop the vehicle (such politeness). Th .....

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e key away, and walked away in his bloodstained clothes in the general direction of one Mrs Antoinite s house (these customs officers live rather dangerously). Meanwhile, Alvernaz was wasted. (Emphasis added) 60. In paragraph 14, the CESTAT describes Fernandes prosecution as a side-show . 61. This is not the language of the law. It is not what we expect - no, demand - from Tribunals in our jurisdiction. This case had nothing that justified this sneering, sniping superciliousness. Sobriety is eve .....

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