TMI Blog2008 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to Ikram Nisssr Chand and Abedulla Kadiwala on 30-11-2004 alleging, inter alia that: 1.1 The officers of Air Intelligence Unit had intercepted the passenger Ikram Nissar Chand near the Exit Gate. The said passenger had arrived from Dubai by the flight EK-504 on 5-6-2004 and cleared himself through the green channel. The declaration column in the customs clearance gate pass for the value of the dutiable goods was kept blank. On frisking, it was found that the passenger was wearing two wrist watches on each of his wrists and had concealed something in the socks worn by him. Thus, independent panch witnesses were called and before them the passenger admitted of having concealed the wrist watches. The personal search of the passenger resulted in the recovery of 13 watches 6 out of these 13 watches, were recovered from the bundles concealed inside the socks worn, 3 from the pockets of the coat/jacket worn by him and four were worn on wrists. The passenger under the escort of officers and panch witnesses was taken to the office of the Air Intelligence Unit for detailed examination of his baggage and further investigation. The said 13 watches of Cartier/Jaeger-Le Coultre were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law: 1.5 The passenger was arrested on 5-6-2004 and he was granted bail on 7-7-2004. 1.6 In his statement dated 15-6-2004, recorded in the jail under judicial custody, the passenger stated that he had a resident visa of Dubai and an office named M/s. Khalba Computer, Deira, Dubai. He further stated that he had been doing business of import/export computers and watches; that on his arrival on 5-6-2004 he had gone to red channel of customs for getting the goods detained; that the seized goods were not concealed but kept in his black bag; that he did not declare the goods on gate pass because before he could write that, the officers intercepted him and took over his gate pass and passport. The passenger, however, could not tell the name of the officer to whom he had approached for declaration at Red counter nor he could give the description or no. of the counter. He refused to answer any more questions and did not even put his signatures at the end of the statement despite the fact that the same was recorded by him in his own handwriting. 1.7 In his affidavit dated 29-6-2004, the passenger had reiterated his contentions made in his earlier letter and statement. He also int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed under seizure. In his statement dated 26-8-2004, he stated that those bills were prepared by his boss Shri Haji Ismail and the digits shown against some of the watches could be the serial nos. of the watches under seizure. A letter dated 19-8-2004 of M/s. Khalba Computers was received wherein it was stated that the goods found in possession of Ikram Chand on 5-6-2004 were to be taken by him to Singapore for delivering to their client. The re-examination of the seized watches before panch witnesses on 16-9-2004, however, revealed that the descriptions of the watches mentioned in the said two bills did not match with the descriptions of the seized watches. 1.12 In their statements dated 1-9-2004, both the panch witnesses viz., S/Shri Atul Suresh Shedge and Suresh Kumar Essacki, stated that they had seen the recovery of watches, concealed on person of the passenger Ikram Nisar Chand, near the Exit Gate. They had also seen recovery of two mobile phones. The said items were seized by the customs officers in their presence. They further stated that the said passenger caused injuries upon himself with broken glass pieces and as he was bleeding profusely he was taken to the hosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch dealer in Mumbai having a show room there. He also confirmed the mobile nos. of Abedulla Kadiwala and stated that mobile no. 971506958413 was Abedulla's Dubai number. 1.18 Due to contradictions in the statements of Ikram Nisar Chand vis-a-vis the facts gathered during the investigations summons were issued to Ikram Nisar Chand for appearance on 20-9-2004, 27-9-2004, 4-10-2004 and 11-10-2004 for confronting him with these facts. However, he had never appeared before the department for giving his further statements on the issues. Similarly, Abedulla Kadiwala also did not appear before the department despite the fact that he was issued summons to appear on 17-9-2004, 24-9-2004, 1-10-2004 and 8-10-2004. 1.19 The facts, therefore, indicated that Shri Ikram Nisar Chand had attempted to smuggle the seized goods in India, which was evident from his option for clearance though green channel, the manner of concealment of goods and no declaration made on the Customs Gate Pass. His various representations and statements claiming that the goods were for transshipment purpose were devoid of merit as the same were found neither convincing nor factual. 1.20 In terms of para 2.20 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Mobile No. 9821023757 for some small favours from Abedulla Kadiwalla like chocolates or shoes or some medicines from Dubai but due to confusion he had denied in his earlier statement about having the personal details like phone numbers etc. of Ikram Chand and Abedulla Kadiwala He also stated that he had neither talked nor met Abedulla Kadiwalla or Shri Ikram Chand for the last six months. 2.3 Shri Gurinder Sahni of M/s. Jot Impex, New Delhi, a branded watch dealer who was found to be having regular telephonic touch with Shri Abedulla had stated in his statement dated 14-12-2004 that Shri Abedulla Kadiwalla met him around two and half years back and introduced himself as a watch dealer in Mumbai and probably gave his visiting card showing the name of his shop as 'World of Watches' mentioning that he (Abedulla) was interested in dealership of 'Baume Mercier' watches for which Sahni was a dealer in India; that sometime in 2003, he (Sahni) had visited the shop of Shri Kadiwala in Santacruz, Mumbai, when Shri Kadiwala was also in the said shop and that whenever he (Sahni) called on phone Nos. 9821728532, 9821340236, 9892530027 and 971506958413 (Dubai). Shri Kadiwala himself a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city with the activities of Abedulla Kadiwala or Ikram Nisar Chand and made an exculpatory statement. 2.8 It appeared that Mukhtar Gojaria had been associated with the smuggling activities of Ikram Nisar Chand and Abedulla Kadiwala and because of his guilt did not admit to even knowing Shri Abedulla Kadiwalla. However, at a later stage he admitted his connection with Abedulla Kadiwala and Ikram Nisar Chand but still made exculpatory statement regarding his frequent telephonic talks with the said persons on their Indian and Dubai contact numbers. It appeared that Shjri Mukhar Gojaria also misused the premises of M/s. Swiss Gallery to sell the wrist watches smuggled by the said Abedulla Kadiwala and Ikram Nisar Chand besides using the shop named "Watches of the World" at Santacruz, Mumbai, started in partnership with the said Abedulla Kadiwala. The wrist watches seized from the shop premises of M/s. Swiss Gallery, Mumbai, appeared to have been smuggled by the duo of Ikram Chand and Abedulla Kadiwala. 2.9 Watches were the goods notified under Section 123 of the Customs Ad, 1962, and the burden of proof that the watches under seizure were not smuggled in, lied on the person fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 18-10-06 was a professional pancha and personally known to the concerned Customs Officers (iii) He was not denying the seizure or disclaiming the seized goods, but he was denying the allegations levelled against him in the seizure panchnama about the concealment, mis-declaration of the goods and an attempt to clear the said goods without payment of duty etc. These allegations were absolutely untrue and were incorporated in the Show Cause Notice on the basis of the seizure panchnama and he knew for sure that there were no panch witnesses available on the scene for the entire period till he was shifted to Govt. Hospital from Airport on the fateful day i.e. 5-6-2004. Also they could not have remained present at all as they were not in possession of any I written permission from the watch-dog agency (C.I.S.F.) which monitors the entire Airport, including the entry to Customs areas even by the Customs officers on duty. 3.2 On behalf of Abedulla Kadiwala, it was submitted that: (i) While conducting the investigations in any smuggling case it was not wrong on the part of the investigating officers to question or interrogate any suspect person/s, but it was certainly wrong and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person charged with the contravention of provisions of Section 112 of the Customs Act, 1962, the burden was on the Revenue to prima facie establish the involvement of such person supported with corroboratory evidence. The Revenue had miserably failed to prima facie establish his involvement in the alleged import/dealing of the impugned goods under seizure. 3.3 On behalf of Mukhtar Umer Ghojaria, it was submitted that: (i) Six watches, out of the 7, seized by the department were fake and replica of originals. These were made indigenously. The same might be got examined from an expert. The rest one of Rado brand was procured from M/s. Swatch Group India, who are the importers as well as authorized distributors of the same in India, under proper documents. However, in the invoice, M/s. Swatch Group India had mistakenly mentioned the said watch as being a gents watch while the sale to them was of a ladies model. The department could verify this fact from M/s. Swatch Group, India. These watches were, therefore, not liable to confiscation. (ii) He had known Ikram Chand only for a year. Ikram Chand stayed in the same area where he resided and they used to meet at the time of praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who were the importers as well as authorized distributors of the same in India. However, in the said invoice, M/s. Swatch Group India had mistakenly mentioned the said watch as being a gents watch while the sale to them was of a ladies model. They were following up with M/s. Swatch Group India to either rectify the said mistake or to issue a declaration to that effect which would show that their contention was true and factual. In so far as the other 6 watches of Omega brand were concerned, the same were fake and the department could ascertain the fact by conducting enquiry through an expert. The fake watches are indigenously made. (iii) Regarding allegation of dealing of smuggled watches by the said shop, he submitted that that there was no dealings of any nature whatsoever between him and/or the said shop and Shri Chand and Shri Abedulla. The allegations were made solely on the basis of the statements of Shri Mukhtar with regard to his relationship with the other two gentlemen. Even Shri Abedulla had nowhere stated having dealt with him or his shop. Thus the allegations based upon only the alleged relationship between Shri Mukhtar, in his personal capacity, and Shri Chand and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended declaration of the goods for transshipment to Singapore had developed gradually. In the letters dated 5-6-04 and 8-6-04, his say was limited to the allegation that the customs officers were ready to grant him the reshipment for consideration of payment of bribe; whereas, on 15-6-04, in his statement he developed the said story by distinguishing between plain clothed officers and uniform officers. According to him, he did opt for red channel, but he did not know counter number or the name of the uniformed officer. He did admit that he had not declared the goods on his gate-pass, but his excuse was that before declaring the same, the officers in plain clothes took his gate-pass and passport; to correct himself more, the passenger filed the affidavit dated 29-6-04 wherein he stated that he had reached the counter, he had stated his case, the uniformed officer accepted his version and was going to issue the detention receipt and meanwhile the plain clothes men stopped the uniformed officer. It was, however not stated by him as to why the gate pass was blank even after he had reached the counter and how the officer, according to him, accepted his version and was going to issue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter proceeded to his destination with the watches to be delivered. The question, therefore, arose as to whether earlier also, as he claimed in this case, he had deposited the watches for reshipment. No such evidence was brought by him and there appeared to be no record of such deposit of watches earlier with Mumbai Airport customs by Shri Ikram Chand. Therefore, his claim of taking watches to Singapore after coming to Mumbai, which was also the commencement point of the journey, was nothing but an afterthought. (vii) It was the contention of Ikram Nisar Chand that the air tickets were provided by his employers. But the examination of the air-ticket taken over from Ikram Nisar Chand revealed that it was booked through a travel agency named M/s. Cozy Travels, Mumbai. Statement of Shri Rajesh Punjabi, partner of M/s. Cozy Travels was recorded on 10-9-04 under the provisions of Section 108 of the Customs Act, 1962, wherein he inter alia stated that they had issued the tickets to the person named Shri Ikram Nisar Chand and also submitted the details of such tickets issued to him from 3-1-04 to 21-5-04, he stated that the tickets were personally booked by Shri Ikram Nisar Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, he also did not comply with the summons to attend on 17-9-04, 24-9-04, 1-10-04 and 8-10-04. There was no force in the defence of Abedulla Kadiwala that he was merely a co-traveller who was witness to the events happened on the day of seizure as the travel ticket records, his business record, his joint travel with Ikram Nisar Chand amply proved his involvement with Ikram Nisar Chand. (xi) The print outs of mobile telephone No. 9892530027 which was found with Ikram Nisar Chand and two other numbers which were frequently called or from which numbers the calls were frequently received i.e. phone No. 9821728532 and 9821340236 were obtained from the service providers. It was revealed that all these three phone numbers were in the name of Ikram Nisar Chand. Further, it was also revealed that those numbers were being called by at least two watch dealers to contact either Shri Ikram Nisar Chand or Abedulla Kadiwala. Those watch dealers were identified as M/s. Swiss Gallery, Mumbai and M/s. Jot Impex, New Delhi. During the statements, Mukhtar Ghojaria of Swiss Gallery was repeatedly asked about his relation with Shri Ikram Nisar Chand and Abedulla Kadiwala, but he maintained tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (CIF) seized from the shop premises of M/s. Swiss Art Gallery and in lieu of confiscation allowed the release of the same on a payment of fine of Rs. 50,000/- in addition to the payment of applicable duty and imposed personal penalties of Rs. 50,000/- each on Shri Aftab Patel and Shri Mukhtar Umer Gojaria. The Commissioner further imposed a penalty of Rs. 2,00,000/- on Shri Abedulla Kadiwala holding his complicity in both the cases. 6. It was urged before us in the course of arguments on behalf of Ikram Chand that: (i) The appellant was carrying 13 assorted wrist watches and two personal mobile phones out of which 12 assorted watches were meant for transshipment to Singapore during his journey a few days later and were to be delivered by him to a customer there. Since the appellant was not carrying any dutiable goods for local clearance and the wrist watches were meant for transshipment, logically the column in the customs gate pass requiring the passengers to fill the total value of the dutiable goods was left blank. The appellant on arrival approached the red channel and declared the goods to the proper officer for temporary detention. In between the conversation, the AIU o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Cooper Hospital requesting him to allow a police guard to remain present besides the appellant has been acknowledged by the Medical Officer at 10.00 hours. Once the commencement of the seizure panchnama has been proved to be false, the narration of other alleged incidents therein automatically becomes a sham and unacceptable. (b) In the show cause notice it is stated that while stopping the 'appellant from stabbing himself, one officer also got hurt, but no such incident was recorded in the panchnama. This shows that two doctored certificates were obtained from the airport doctor to support the concocted story, which falls flat in light of the records of Cooper Hospital and the statement recorded by the police officers from the appellant in Cooper Hospital on 5-6-2004. (c) The alleged par also records that the appellant, after being taken away to Cooper Hospital, was questioned about his Air Ticket. This is not possible because the panchnama itself narrates that after shifting of the passenger to Cooper Hospital, the remaining proceedings were conducted and concluded in the absence of the passenger. (d) The panch witnesses cannot, in absence of a valid permission from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te [1988 (36) E.L.T. 410 (Bond.)], the Hon'ble Bombay High Court has held that such a lapse will give a serious jolt to its evidentiary value particularly when the accused has categorically denied the correctness and validity of the panchnama. (ix) With regard to the seizure of 7 wrist watches from the premises of M/s. Swiss Gallery, there is no statement on record which could indicate the appellant having any business relationship with the owners/manager of that shop. In absence of any evidence, no case can be made out against the appellant by any stretch of imagination. (x) The appellant may be absolved of the charges levelled against him in both the show cause notices and the adjudication order be set aside. He may be allowed to transship the goods seized from him. 7. In their appeals, Shri Mukhtar Ahmed Gojaria and Shri Aftab Patel have re-urged the points that they had submitted before the adjudicating authority. They have assailed the order of adjudicating authority on the ground that despite submitting the fact that the 6 watches were indigenously made replicas, no effort was made to get those watches examined from the experts. They, therefore, submitted that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no signatures of the Superintendent. We even find from the statement dated 15-6-2004 of the passenger that he is not able to tell the counter number and the name of the uniformed officer of the Customs, to whom he had declared the goods in the red channel. We think that we do not require much discussion on the fact that the customs counter numbers are conspicuously displayed in bold at all the international airports and the uniformed officers always wear name plates while on duty. We, therefore, find that the appellant's submission that he went to the red channel and declared the goods, under the circumstances, fails to carry any conviction. 12. With regard to seizure panchnama, the main plank of appeal is that the panchnama is a false document as the Cooper hospital records state that the passenger was admitted in the said hospital at 10 am on the same day while the panchnama indicates that the panch witnesses were called at 9.50 am and thereafter the recovery was made from the passenger. We, however, find that the records of the Cooper hospital clearly show that the appellant was admitted at 2.00 pm. Even the appellant has himself stated in his statement dated 12-7-2004, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rport, who have security passes to enter the premises. Therefore, there may be numerous incidents when one can find a person acting panch witness in more than one case. Besides, the panchnama has to be witnessed by persons who are locally available to give evidence later and not by passengers who would not be available later on for evidence. But merely because these employees are called in by the investigation as they happened to be avail or it is convenient to call them, is no ground to view their evidence with suspicion. It is extremely unfair to a witness to reject his evidence by merely giving him a label. In the case of Gyan Singh v. State of Punjab, AIR 1974 SC 1024, at page 1026 (para 5), the Supreme Court has observed: 'in a recent case to which one us was party ( Som Prakash v. State of Delhi ) AIR 1974 SC 989, this Court has held wt police officials cannot be discarded in a trap case merely because they are police officials nor can any other witness be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the court has to view the evidence in the light of probabilities and the intrinsic credibility of those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry passes were not valid for that area. On perusal of the record of the cross-examination, we find that Shri Suresh Kumar Essacki, the panch witness, had confirmed the contents of panchnama and there was nothing going in favour of the appellant. We also find that on questioning, the said witness had also shown his security pass, which was very much valid for the entry in the area, where the search of the passenger and recovery of goods from his person was shown in the panchnama. It was also answered by the said witness that for writing the panchnama, they all went to AIU office at 1st floor and though he was not permitted to enter the AIU office, they did so because the officers were along with them. We observe here an interesting point that the passenger has himself alleged in his representations that he was taken by the officers to the 1st floor office. Therefore; the moot point to observe is as to how the passenger, who also did not possess any security pass, entered into that area. Obviously, they all were taken to that place by the Air Intelligence Officers, as stated by the panch witness. We do not find anything unusual h it that they all were taken to the sensitive area b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also other attendant circumstances to rely on. The appellant was not available with the department as he had to be hospitalized before the completion of panchnama. Even on the day when he was de dared fit by the hospital authorities, he refused to accept any document, which is evident from the facts brought out in the form of panchnama. He was then arrested and sent to judicial custody. Such was his behaviour that he refused to sign his statement, given by him in his own handwriting, in judicial custody on 15-6-2004. It was only during his second statement in judicial custody on 30-6-2004 that he accepted the copy of the panchnama. Moreover, it is appellant's own case, (we may refer here to his statement dated 12-7-2004) that during the four days in hospital he did not sign any papers given by the Customs as he was not fully well. 16. On reading the panchnama, the statements of the panch witnesses given under Section 108 of the Customs Act, 1962, and the cross-examination of one of the panch witnesses, we find that there is no inconsistency or flaw in the version of the witnesses and hence they are reliable. We have also held in the preceding paras that their evidence cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when tested against the documentary: evidence. He had stated that tickets were given by his company, while it was found that the tickets were purchased by him from a local travelling agent. He had also stated that for every such visit he first came to Mumbai and then went to the destined place, whether east or west, via Dubai. However, how false this claim was, is evident from the fact that there was no incident found in official records or poined out by him, when he had declared the goods for re-shipment purpose during any of his numerous previous visits to Mumbai. In his initial representations and affidavit he claimed himself to be the owner of a Dubai based company and later dropped the role of the owner and switched over to the version that he was merely an employee and the goods belonged to the company. We, however, find that the company, has never agitated before the lower authorities for non-issuance of the show cause notice to them. The company has also not agitated before us against the passing of adjudication order without making them a party. And Ikram Chand submits bills of the company stating them to be of the watches seized and the description of the watches do not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsifying the story put forward by the appellant. Equally a false denial could be relied upon by the Customs authorities for the purpose of coming to the conclusion that the goods had been illegally imported. The Hon'ble Supreme Court again held in the case of Bhanabhai Khalpabhai [1994 (71) E.L.T. 3 (S.C.)] that it is very difficult for the prosecution, to prove every link, in respect of the commission of the offence under the Act by direct evidence. The whole process of smuggling, for evading payment of customs duty consists of different links. The links aid and abet each other, sometimes through a remote control. Therefore, the prosecution is not required to prove every link with direct evidence. Under such circumstances, Abedulla Kadiwala is very much an accomplice of Ikram Chand in smuggling of the wrist watches and the exculpatory statement given by him or Ikram Nisar Chand or any other person will not be of any help to them in view of the other pieces of evidence brought on record and discussed by us earlier. 19. Regarding the submission that the authorities could not have issued second show cause notice under the same file no., we find that there was prima facie material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be confiscated and he would place reliance on the case of Irfan Abdul Haque [2001 (131) E.L.T. 441 (Tri.-Mum.)] in this regard. We, however, do not agree. There are prohibitions on the import of non-bona fide baggage items as well as trade goods by mode of passenger personal baggage vide para 2.20 of the Foreign Trade Policy in force. 22. Keeping in view the facts and circumstances of the case, we uphold the order of the Commissioner confiscating 13 watches and 2 mobile phones. However, we give option to Ikram Nisar Chand to redeem the same on payment of redemption fine of Rs. twelve lakhs and on payment of appropriate customs duties. The penalty of Rs. 2 lakhs each imposed on Ikram Nisar Chand and Abedulla Kadiwala is upheld. 23. Regarding the appeals of Shri Aftab Patel and Shri Mukhtar Umar Gojaria, we find that it was submitted by the appellants before the adjudicating authority that except one Rado watch, the rest of six seized watches were not genuine but locally made replicas and the same could be got tested from an expert. The same point is again agitated before us. We find that before passing the order, the adjudicating authority has not taken any opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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