AI Structured Summary
Not yet generated for this judgment
Judgment
Since common question of law is involved in both these appeals, hence decided by common judgment and order.
Heard Learned Counsel for the parties and perused the record.
The instant appeal, u/s 130 of the Customs Act, 1962 (in short ''Act'') has been filed against the final order dated 28-11-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short Appellate Authority), whereby the appeal filed against the original order dated 23-5-2007 has been dismissed.
In brief, the facts of the case are that on 4-7-2005 at about 5.20 hrs, Indian Airlines Flight No. IC 884 arrived at Amausi Airport, Lucknow. The passengers were passing through the Arrival Hall. One of the passengers who had passed through the Green channel with his baggage was suspected carrying contraband goods. The Officers called two independent witnesses and stopped him at the Exit gate of the Arrival Hall and brought him to the Customs Counter. His baggage was searched before the two independent witnesses and goods, as detailed below were recovered from his baggage.
SI.
No.
Description of Goods
Quantity
Value (Rs. )
1.
Camera (Canon Power Shot SI 15 3.2 MPxPC 1058 Made in Japan) along with Flash Card FC 32 MH. Canon.
08 Pes
2,00,000/-
2.
Camera (Canon Power Shot S2 15 5 MPxPC 1130) Made in Japa along with Memory Card SDC 16M
19 Pes
4,75,000/-
3.
Saffron
20Kgs
4,00,000/-
4.
Blue Tooth (Brand and quot;Jebra and quot; Made in China BCE 250
50 Pes
1,25,000/-
5.
Dental Needles
5800 Pes
87,000/-
6.
Memory Card (Brand Twin MOS Compact Flash Card 128 MB Made in Taiwan)
50 Pes
1,00,000/-
7.
Wrist watches
464 Pes
2,32,000/-
Total
16,19,000/-
The passenger was carrying Passport No. E-2773289, his Air ticket, 40 Dirhams and Rs. 500/- with him. On interrogation the passenger disclosed his name and address as Aqeel Khan s/o Late Shri Anvar Khan R/O Vill. and P''.O. Qaboolpur, P.S. Jalalpur, District Jaunpur.
In his statement recorded, u/s 107 and 108 of the Customs Act, 1962, he admitted that he had purchased the said goods in Dubai and was bringing them to India, to sell the same for monetary benefit. He admitted that he had visited Dubai frequently. He stated that the wrist watches which were marked TITAN and INDIA were duplicate and were actually made in Chiana. He had purchased the same as it could be sold in India at higher rate due to trade mark of the reputed firm.
Shri Mohd. Aqeel Khan stated in his statement dated 4-7-2005 that he would have sold the said goods at Varanasi. He has no prior arrangement with any trader of Varanasi for the sale of the said goods, and he would have sold the goods as per available prices offered by the traders. Shri Aqeel disclosed in his statement u/s 108 of Customs Act, 1962 dated 6-7-2005, recorded in jail, that he was carrying out business of tempted jewellery in Mumbai along with his brother-in-law Shri Kausar Khan and his address of Mumbai was Beside Reh-mani Masjid, Road No. 3, Ganesh Nagar, Kandewali (W), Mumbai. He told the name of his landlord of Mumbai as Ansar.
As the Recovered goods were in commercial quantity which were attempted to be smuggled into the country for commercial exploitation, by way of evading customs duty on the goods, it was reasonably believed that the said goods were illegally imported from Sharjah to India contravening the provisions of Section 77 and Section 79 of the Customs Act, 1962, therefore the same are liable for confiscation u/s 111 of the Act ibid. The Customs officials seized the same u/s 110 of the Act ibid after drawing a Panchnama before the independent witnesses. As Shri Mohd. Aqeel Khan was involved in the smuggling activity and liable for penal action u/s 112 and 135 of Act ibid, he was arrested on 4-7-2005 u/s 104 of the Customs Act, 1962 and sent to jail. His Judicial Custody was taken for 14 days till 18-7-2005. His passport and Air Ticket were also seized, whereas the recovered 40 Dirhams and 500 Rupees were returned to Shri Mohd, Aqeel Khan.
During follow up action, it was reported by Joint Commissioner, Customs, RandI, Mumbai vide his letter dated 6-7-2005 that the address of Shri Mohd. Aqeel Khan at Mumbai, which he had disclosed in his statement u/s 108 of Customs Act dated 6-7-2005 in Jail, was fictitious. Perusal and scrutiny of passport No. E-2773289 of Aqeel Khan confirmed that he had visited Dubai and returned to India (Lucknow Airport) frequently. The details of his visits were as under:
SI.
No.
Departure Date
Departure place
Arrival Date
Arrival place in India
No. of days
he stayed
abroad
(from India to Dubai)
(from India to Dubai)
(from Dubai to India)
1
-
5-12-02
LUCKNOW
-
2
8-1-03
MUMBAI
13-2-03
MUMBAI
35 DAYS
3
3-5-03
MUMBAI
21-6-04
MUMBAI
13 MONTHS 19 DAYS
4
5-7-04
MUMBAI
14-7-04
MUMBAI
9 DAYS
5
14-10-04
MUMBAI
16-10-04
LUCKNOW
02 DAYS
6
16-2-05
MUMBAI
23-2-05
MUMBAI
07 DAYS
7
2-3-05
MUMBAI
3-3-05
AHMEDABAD
01 DAY
8
7-3-05
MUMBAI
10-3-05
AHMEDABAD
03 DAYS
9
13-3-05
MUMBAI
17-3-05
AHMEDABAD
04 DAYS
10
19-4-05
MUMBAI
23-4-05
LUCKNOW
04 DAYS
11
4-5-05
MUMBAI
7-5-05
LUCKNOW
03 DAYS
12
17-5-05
MUMBAI
21-5-05
LUCKNOW
04 DAYS
13
8-6-05
MUMBAI
9-6-05
LUCKNOW
01 DAY
14
21-6-05
MUMBAI
23-6-05
LUCKNOW
02 DAYS
15
28-6-05
MUMBAI
4-7-05
LUCKNOW
05 DAYS
It was evident from the Passport that Shri Aqeel Khan always boarded from Mumbai for his visits to Dubai, but while coming back, on 13-2-2003, 21-6-2004, 4-7-2004 and 23-2-2005 he arrived at Mumbai, on 3-3-2005, 10-3-2005 and 17-3-2005 he had arrived at Ahmedabad whereas on 16-10-2004, 23-4-2005, 7-5-2005, 21-5-2005, 9-6-2005, 23-6-2005 and 4-7-2005 he arrived at Lucknow. Thus the frequent visits also revealed that Shri Mohd. Aqeel Khan had opted for different airports while coming back from Dubai. Shri Aqeel Khan was detained under COFEPOSA 1974, for one year, vide Order dated 4-8-2005, confirmed by the Advisory Board, U.P. Govt., on 27-10-2005.
Follow up action was taken at his native place i.e. village Qaboolpur, P.S. Jalalpur, District Jaunpur: His mother Smt. Saikunisha in her statement u/s 108 of Customs Act, dated 30-8-2005 stated that last time her son Aqeel had visited his native place in December 4-1-2005 as she was not keeping well.
On the very same day i.e. 4-7-2005 and by the same flight IC 884, another passenger Shri Niyaz Mohd. Hasan Khan was intercepted with identical foreign goods of approximately Rs. 15.5. Lac, while he travelled across the Green channel with his goods without making a declaration before the Customs. He was also intercepted by the Officers at the Exit gate of the Arrival Hall. The Passport No. Z-1263449, of Shri Niyaz confirmed that he too had travelled to and from Dubai in similar pattern like Shri Mohd. Aqeel Khan and on three dates i.e. 23-4-2005, 7-5-2005 and 4-7-2005 they had travelled together from Dubai and arrived at Lucknow airport.
The Customs Investigating Officers visited District Jail, Lucknow on 20-7-2005 after obtaining permission from the Competent Court to interrogate Shri Mohd. Aqeel Khan and Shri Niyaz Mohd. Hasan Khan in judicial custody, as it appeared that some key persons were financing and managing the things for both of them from behind Shri Mohd. Aqeel Khan and Shri Niyaz Mohd. Hasan Khan both refused to disclose anything further and to give any further statement.
A Combined Application dated 2-8-2005 was received from Shri Mohd. Aqeel Khan and Shri Niyaz Mohd. Hasan Khan, addressed to the Deputy Commissioner, Customs, Airport, Lucknow, requesting not to dispose off the seized goods. They offered a price of 5%, over and above the disposal price fixed by the department. In case the goods seized from them were given back to them.
On 2-8-2005, a Retraction was received from Shri Mohd. Aqeel Khan stating that he deny the allegation of non declaration of the goods brought by him and his attempt to clear the goods from Green channel of the Customs Arrival Hall. He stated that he wanted to clear the goods by paying the customs duty.
During investigation of the case name of one Shri Sheikh Mohd. Salim Abdul Jabar S/o Abdul Jabbar originally R/o Post Sisvaria, District Gonda, now settled in Mumbai R/o Room No. 27, IInd Floor, 42/2, Merchant Building Opposite Ashadham Byculla, Mumbai-08 and his telephone No. 9892627866 came to light. A search was conducted at his residence i.e. Room No. 27, Ilnd Floor, 42/2, Merchant Building Opposite Ashadham Complex, Near Ashadeep, Bycalla, Mumbai 08 and a Panchnama dated 2-8-2005 was drawn, wherein Smt. Tabassum, wife of Shri Sheikh Mohd. Salim Abdul Jabbar stated that Salim had gone to Gonda for funeral of his father about 25 days back and has not returned. since then. Hence, statement of Shri Sheikh Mohd. Salim Abdul Jabbar could not be recorded. The call of details of his Mobile No. 9892627866 were procured from M/s Airtel Ltd. Lucknow.
During investigation, one more Mobile No. 9415758376 also came to light. The B.S.N.L. vide their letter dated 25-8-2005 informed that the number belonged to one Shri Fazil Hussain, R/o 385/Ka, Saadatganj, Lucknow. Shri Fazil Hussain was summoned and vide his statement dated 20-9-2005 recorded u/s 108 of Customs Act, 1962, he stated that he had handed over his said number to his brother-in-law Shri Akhlaq Mohd. Naqvi (Advocate), R/o Masjid Tahseen Ali Khan, Chowk, Lucknow.
On scrutiny of call details of Mobile No. 9892627866, it was gathered that the local No. 9415758376 possessed by Shri Akhlaq Naqvi, Advocate was constantly in touch with the aforesaid Mobile No. 9892627866, just before the arrival of the passengers Aqeel Khan and Niyaz Hasan from Dubai. In his statement dated 14-11-2005 before Customs Mumbai, Shri Seikh Mohd. Salim Abdul Jabbar accepted that the Mobile No. 9892627866 belongs to him. Shri Sheikh Mohd. Salim Abdul Jabbar is also Parokar of both the persons from the first day of the case.
Shri Akhlaq Mohd. Naqvi, Advocate was summoned by the Superintendent, Customs HQ, Lucknow u/s 108 of the Customs Act, dated 20-9-2005, wherein he was required to appear before the Superintendent, Customs HQ Lucknow, Lucknow on 23-9-2005. In reply to the summon, a letter dated 23-9-2005 was received saying that Shri Akhlaq Mohd. Naqvi is out of station in connection with a case and so another date may be given. The request was accepted and the next date was fixed for 30-9-2005. Shri Akhlaq Mohd. Naqvi, Advocate submitted a letter dated 28-9-2005 received vide post on 29-9-2005 (a photocopy of the said letter was also received by hand in the office on 30-9-2005) wherein he stated that he should be exempted to appear before the customs officials as he was an advocate for Shri Aqeel Khan and Shri Niyaz Mohd. Hasan Khan who were intercepted on 4-7-2005 at the Airport, and that the right of the applicant is liable to be protected u/s 129 of the Evidence Act as the alleged conversation was made in between the client and his advocate and the Advocate can''t be compelled to give any statement to be used against him.
Scrutiny of the call details of the Mobile No. 9415758376 of Shri Akhlaq Mohd. Naqvi, Advocate, confirmed that he was in touch with Shri D.S. Shukla, Air Customs Officer posted at Amausi Airport till 12-7-2005, having Phone No. 9415031531 and 9415365536 till 12-7-2005. The call details also revealed that Shri Sheikh Mohd. Salim Abdul Jabbar was in contact with one international No. 971502509785 of Dubai which was regularly in touch with him, and at times with Shri Akhlaq Mohd. Naqvi, Advocate also. Whenever Shri Niyaz Mohd. Hasan Khan and/or Shri Aqeel Khan came from Dubai to Lucknow, Shri Akhlaq Mohd. Naqvi had contacted Shri D.S. Shukla, Inspector the then Air Customs Officer, who was present on duty on those dates (as per of Office DUTY CHART). It was also observed that both Shri Sheikh Mohd. Salim Abdul Jabbar and Shri Akhlaq Mohd. Naqvi, Advocate were also in touch with a Mobile No. 9322871107, which belonged to Shri Niyaz Mohd. Hasan Khan, as per the letter dated 01.03.2006 of M/s Reliance Infocom, Lucknow. The call details of Mobile No. 9322871107 was also procured from M/s Reliance Infocom, Lucknow.
For investigation, it was all the more necessary that Shri Akhlaq Mohd. Naqvi, Advocate R/o Masjid Tahseen, Chowk, Lucknow should present himself before the Inquiring Officer when the summons u/s 108 of the Customs Act were issued to him, but Shri Akhlaq Mohd. Naqvi Advocate vide his letter dated 25-11-2005, which was received by the Superintendent on 30-11-2005 stated that due to sudden demise of his uncle Shri Ahmed Mustafa Rizvi at Chapra (Bihar) he will not be able to appear and two weeks time may be given to him for evidence. Simultaneously, Shri Akhlaq Mohd. Naqvi, Advocate moved an application before Oudh Bar Association, Lucknow against the Investigating Officer Shri Rashmikant, Superintendent, who had issued the summon u/s 108 requiring Shri Akhlaq Mohd. Naqvi, Advocate to appear for evidence on 29-11-2005. The Secretary of the Association issued a Show cause notice against the Investigating Officer Shri Rashmikant, Superintendent Custom, directing him to appear before him on 5-12-2005. In the above letter it was stated that Shri Naqvi shall not attend the Customs Office for evidence. Again on 8-12-2005, Secretary of Central Bar Association, Lucknow issued a letter to the Investigation Officer Shri Rashmikant, Superintendent Customs, Lucknow, alleging that he is harassing Shri Akhlaq Mohd. Naqvi.
The adjudicating authority had recorded the finding that Shri Akhlaq Mohammad Naqvi, Advocate had adopted obstructionist manner, reports of investigation which indicates that he tried to abate the process of law and was the part of syndicate and had vested interest in Aqeel Khan. The Adjudicating Authority further observed that Shri Akhlaq Mohammad Naqvi, Advocate was one of the key persons, who was involved in smuggling syndicate by coordinating with Sheikh Mohd. Salam Abdul Jabbar on Mobile telephone on one hand and Shri D.S. Shukla, Air Customs Officer, Lucknow on the other hand to facilitate to Shri Niyaz Mohd. Hasan Khan and or Mohd. Aqeel Khan during their frequent visits to Lucknow Air Port to indulge in smuggling activities. The Adjudicating Authority seems to have applied mind to the entire facts and circumstances and material evidence on record while confiscating the goods. The detailed and reasoned order seems to have been passed by Adjudicating Author-ity.
During course of proceeding before the Adjudicating Authority, notices were sent through registered post, but it was returned back with remark of postman to the effect that the Petitioner is not available. In consequence thereof, in pursuance to concession in Section 153(b) of the Act, they are affixed on the Notice Board.
The findings recorded by Adjudicating Authority are reproduced as under:
Accordingly, I order confiscation of the seized foreign origin goods valued Rs. 16,19,000/- as detailed in the Panchnama dated 4-7-2005, u/s 111 of the Customs Act, 1962 but give an option for Redemption of the goods u/s 125(1) of the Customs Act, 1962 on a fine of Rs. 10,00,000/- (Rupees Ten Lac). The option shall be exercised within 20 days of receipt of this order.
I also order for payment of Customs Duty of Rs. 5,77,983/- on the Redeemed goods (Baggage Duty @ 35% Adv.+Education Cess @ 2%),under Section 125(2) of the Customs Act, 1962. The duty shall be paid in addition to the Redemption Fine on the goods.
I impose a personal penalty of Rs. 6,00,000/- (Rupees Six Lac only) on Shri Aqeel Khan u/s 112(b) of the Customs Act, 1962.
1 also impose personal penalties on the following noticees u/s 112(a) of the Customs Act, 1962:
(a) Shri Abul Salim Jabbar Rs. 3,00,000/- (Rupees Three Lac only)
(b) Shri Akhlaq Naqvi Rs. 1,00,000/- (Rupees one Lac only)
(c) Shri D.S. Shukla Rs. 50.000/- (Rupees Fifty thousand only).
Feeling aggrieved by the order passed by Adjudicating Authority, the Petitioner has preferred an appeal, which was dismissed by Commissioner Appeal. Thereafter, the Petitioner has preferred an appeal before the Tribunal, that was too dismissed. Both the Appellate Authority recorded finding that the Petitioner has approached the Tribunal after inordinate delay and beyond statutory period and hence, call for no interference.
It appears that order-in-original dated 23-5-2007 was sent to Petitioner by the registered post but the same was returned back as unserved, being Petitioner not available. It was affixed on the Notice Board in pursuant to statutory provision. According to Learned Counsel for the Appellant, the Appellant has moved an application under RTI Act on 21-8-2007 for supply of copies of original order, which according to Appellant''s counsel, was not provided. Feeling aggrieved, Appellant has filed a writ petition in this Court on 19-5-2007. This Court passed an order, directing the Respondent to provide a certified copy to Appellant in Original. The copy of order-in-original was provided on 15-11-2007. Thereafter appeal was filed on 19-11-2007. Admittedly, the period for filing the appeal under the Act is 60 days. It appears that Appellant has filed application under RTI Act within sixty days. and in the event of no response, he preferred writ petition in this Court, which was decided on 19-9-2007. Even after disposal of writ petition on 19-9-2007, it took almost two months for Respondents to provide certified copy of original order i.e. on 15-11-2007. The facts and circumstances and material on record, shows that order-in-original was virtually communicated on 15-11-2007 and thereafter appeal was filed on 19-11-2007. Though Shri Rajesh Singh Chauhan, Learned Counsel for the Respondent submits that Appellant being an Advocate, adopted dilatory tactics and he himself had not participated in the proceeding before Adjudicating Authority, but the limitation with regard to filing of appeal is to be counted from the date of service of copy of the order-in-Original. The application under RTI Act was filed within sixty days and thereafter writ petition was filed. and even after pronouncement of judgment by this Court on 19-9-2007, the certified copy of Original order was served on 15-11-2007 by the Respondents. Respondent themselves have not acted fastly to serve the copy of the order-in-Original within reasonable period. As observed, it took almost two months for the Respondent to serve order-in-Original. Cause shown by the Appellant with regard to non filing of the appeal seems to be reasonable and satisfactory explained. Order-in-Original was served on 15-11-2007 on the Appellant. The allegation that the Appellant had adopted dilatory tactics during the course of proceeding before Adjudicating Authority may not be taken into account while considering period of limitation with regard to filing of appeal. The period of limitation for filing of appeal should be considered from the date of service of order-in-Original. The filing of application under RTI followed by writ petition in this Court and delayed compliance of order of this Court by the Respondent makes out the case for interference under the appellate jurisdiction.
In view of the above, the appeal deserves to be allowed and matter be remitted back to the First Appellate Authority i.e. Commissioner Appeal.
It is clarified that we have not entered into merits of the case as far as order passed by Adjudicating Authority is concerned.
In view of the above, impugned order dated 30-1-2008 passed by the Commissioner Appeal and order dated 28-11-2008 passed by Appellate Tribunal are set aside. The matter is remitted back to the Commissioner Appeal to restore the appeal to its original number and decide the same on merit considering it to be filed in time. Let decision be taken by Commissioner Appeal independently without being influenced by observation made in the present order, expeditiously, preferably, within two months from the date of receipt of certified copy of this order. Appellant may move an application before Appellate Authority for interim relief, which shall be considered at the earliest. Appeal is allowed accordingly.