HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- CENTRAL EXCISE APPEAL No. - 88 of 2006 Appellant :- Ashish Kumar Chaurasia Respondent :- The Commissioner, Customs, Excise & Servicetax Appellate Tri Counsel for Appellant :- Amit Jaitly,Bharatji Agarwal,Piyush Agrawal Counsel for Respondent :- A.S.G.,R.C.Shukla Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.
(Per: Surya Prakash Kesarwani,J.)
1. Heard Sri Piyush Agrawal, learned counsel for the appellant and Sri R.C. Shukla, learned counsel for the respondent.
This appeal was admitted by order dated 18th April, 2006 on the following substantial question of law:
"Whether in a case where adjudication has been done solely on the basis of statement of co-noticee, whose cross-examination has not been allowed, the adjudication can be sustained.?"
2. Learned counsel for the appellant submits that the entire case set up by the respondent against the appellant is based merely on the statement of a co-noticee whose cross-examination was not allowed to the petitioner and, therefore, the order in original as well as the impugned order dated 27th July, 2005 passed by the Custom Excise and Services Tax Appellate Tribunal, New Delhi in Appeal No. C-376 of 1999 cannot be sustained and therefore deserves to be set aside.
3. Learned counsel for the respondents submits that the order in original is based on consideration of relevant documentary and other evidences on record. The Tribunal has also considered the evidences and recorded the findings of fact upholding the levy of penalty under Section 112 (b) of the Customs Act, 1962 (hereinafter referred to as the Act). The findings recorded by the Tribunal are findings of fact.
4. We have carefully considered the submissions of learned counsel for the parties and perused the record.
5. Briefly stated the facts of the present case are that on the basis of the information received by the Directorate of Revenue Intelligence, Delhi, a team of Officers and staff of Customs and Directorate of Revenue Intelligence, intercepted on 18.2.1992 a blue Maruti van bearing registration No. MP 09-H/2648 near Mandhna Railway Station, G.T. Road, Kanpur. The vehicle was being driven by the driver Sri Ram Bilas Mandal and one Ram Mishore Mishra was found travelling in it. 25 foreign mark smuggled sliver ingots of ".999 purity" weighing 373.365 kgs valued at Rs. 24,82,877.20 were recovered and seized from the said Maruti van. The aforesaid Ram Kishore Mishra admitted that the aforesaid 25 silver ingots recovered from the said Maruti van were smuggled which were concealed in a specially designed cavity built in the floor of the Maruti van. On the same day another vehicle, Maruti Gypsy bearing registration No. UP/78F/5344 carrying contraband silver bricks was intercepted at about 4.30 p.m. near Lal Kuan Ghaziabad by the officers of DRI and 25 silver bricks were recovered. This vehicle was being driven by one Ram Kumar Kashyap and one Sri Jagdish Shanker Trivedi alias 'Jiga Ji' was found travelling in it. On the basis of clue given by the aforesaid Sri Ram Kishor Mishra during inquiry, a team of officers was deputed to further search the "buffalo shed/Doodh Ki dairy of the appellant at Poney Road, Jhandey Wala Chaurah, Bramh Nagar, Shukla Ganj, Unnao. On 18.12.1992 officers visisted the said place and the search warrant was executed upon Sri Om Prakash son of Sri Laxman Prasad who was an employee of the appellant in his 'doodh ki dairy'. The aforesaid employee of the appellant in presence of two independent witnesses disclosed that the appellant regularly used to visit the dairy and had concealed something in the ground which he some times took out and carried in his car. He showed the spot in the premises of the dairy of the appellant. The officers got the earth dug up at the place shown by the aforesaid employee of the appellant in presence of panch witnesses and after digging a trench of about four feet, they recovered 75 silver ingots wrapped in jute packing. On further search of the dairy premises, four more silver ingots, kept concealed under a gunny bag near the wall, opposite to the trench were found. The silver so recovered bearing marks of foreign origin with .999 purity and weighing 2640.227 kg. were valued at Rs. 1,75,60,169/- and the same were seized on prima facie satisfaction to be liable for confiscation under the Act. On the same day another team of customs officers was sent to the shop of M/s Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur and searched the premises in presence of two independent witnesses. The other team of officers visited the refinery/melting unit situated in the same building. The search warrant was executed upon Ram Avatar Singhal, who was the partner of the Refinery/melting unit. During the course of search, melting furnace, melting crucible pot, one die/mould and 14 silver bricks were found lying in a hot condition. The furnace and 14 silver slabs were cooled down by pouring water on them. The silver weighing 222.230 kgs, of the purity of .999 and valued at Rs. 14,77,829/- was seized under Section 110 of the Act. A panchnama was also drawn. The statement of Ram Kishore Mishra, Ram Avatar Singhal, Ram Bilas Mandal and Ram Kumar Kashyap-driver of the Maruti Gypsy, Jagdish Shanker Trivedi alias Jijaji and the panch witnesses who confirmed the recovery of 79 silver bricks of foreign markings from the premises of the appellant and the statement of Sri Om Prakash and others were recorded under Section 108 of the Act.
6. On the basis of the aforesaid evidences and on the belief that the seized goods were liable for confiscation under the Act and the appellant and others were liable to penalty, show cause notices dated 8.6.1993 under Section 124 of the Customs Act were issued to the persons concerned including the appellant. The appellant filed his reply on 11.10.1993. He contended that he has no concern with the silver seized from his doodh ki dairy or the silver seized from the two vehicles. He took the stand that part of the premises was let out by him to Sri Ram Avatar Singhal on monthly rent of Rs. 200 and he was not in possession and use of the premises on the relevant date. He also stated that a suit was filed by his brother against Ram Avatar Singhal on 11.12.1992 in the court of Civil Judge, Unnao and for that reason he was implicated.
7. After considering the relevant material and evidences on record the Commissioner of Customs recorded a finding of fact that 79 silver bricks of foreign origin recovered from the doodh ki dairy of the appellant at Unnao were jointly owned by the appellant and his two brothers which were illegally imported into India in contravention of the prohibition imposed on the import of silver. No documents were presented regarding their proper importation. He also recorded a finding of fact that the burden under Section 123 of the Customs Act with regard to 79 silver bricks to be not smuggled, was not discharged by the appellant. Consequently he confiscated the silver under Section 111 (d) of the Act and imposed penalty of Rs. 2.5 crore on the appellant under Section 112 (b) of the Act. He also came to the conclusion that the appellant was the master mind who operated the network of smuggled silver and was involved in possessing the smuggled silver.
8. Aggrieved with the aforesaid order in original dated 4.8.1999 passed by the Assistant Commissioner, Customs & Central Excise, Kanpur, the appellant and four others filed separate appeals before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. The appeal of the appellant numbered as Appeal No. C-336 of 1999 was dismissed by the impugned order of the Tribunal dated 27th July, 2005.
9. In paragraph No. 3.1 of the impugned order the Tribunal noted the finding of the Commissioner of Customs in the order in the original as under:
"The learned Commissioner found that from the voluntary and independent statements of Om Prakash, Ram Avatar Singhal and Ram Kumar Mishra recorded under Section 108 a direct connection was established between Ashish Kumar Chaurasia alias Pappu doodhwala and the seized silver. It was held that the consistent statements which were recorded at Kanpur and Delhi at different times on the same day brought about the involvement of the noticees in the smuggling of the silver. It was also held that there was no proof regarding letting out of the premises to Ram Avatar Singhal and no body came forward to demarcate the area from the doodh ki dairy of Ashish Kumar Chaurasia. It was held that the various actions and the happenings at various places in Kanpur and in Delhi led to be discovery of the chain of smuggling network and Ashish Kumar Chaurasia was the master mind who operated the network. It was held that from the statement of all concerned, the involvement of Ashish Kumar Chaurasia was proved beyond doubt and it was clear that he was directly involved in possessing, concealing, melting, transporting of smuggled silver for quite some time even before the instant seizure and that his role was much more than a paid carrier or storer and he appeared to be the organiser of the entire smuggling chain and obviously the biggest beneficiary of these acts. The cross-examination of the officers, A.K. Chaturvedi and Simon which was done by Ashish Kumar Chaurasia also revealed the involvement of Ashish Kumar chaurasia as the main person. The learned Commissioner held that Ashish Kumar Chaurasia had requested for another date for personal hearing after cross-examining these two officers so that his advocate could also appear and that various dates for personal hearing were given after this, "but neither Shri Chaursia nor his advocate turned up". As regards the other notices including the appellants, it was held that they subsequently stated that their statements were taken under duress and coercion. However, their statements were taken thrice on different dates and at different places and once under judicial custody in jail, on 18.12.1992, 19.12.1992, 20.12.1992 and 3.1.1993 and the question of coercion or duress could not be believed and, that the retractions would appear to be an after thought. Moreover, there was consistency in the statements initially given by different persons. As regards Ram Avatar Singhal, the leaned Commissioner held that he was the owner of the refinery of M/s Ram Avatar Naresh Kumar engaged in the melting and reshaping of foreign marked silver at the behest of Ashish Kumar Chaurasia and it was evident from the various statements of his own and the statement of Ram Kishore Mishra, Ram Bilas Mandal, Jagdish Shanker Trivedi and Ram Kumar Kashyap that a kind of arrangement was made between him and Ashish Kumar Chaurasia alias pappu doodhwala for melting of silver in his refinery which he used to be sent to Delhi for disposal. He had admittd that the foreign marked silver bricks for melting purposes and sale was supplied by Ashish Kumar Chaurasia. As regards Ram Kumar Mishra (a friend of Ram Avatar Singhal) who was apprehended on 18.12.1992 with 25 silver slabs concealed in the cavity of the Maruti van, it was held that he was in knowledge of transporting the silver slabs and was aware of the activities of Ashish Kumar Chaurasia and Ram Avatar Singhal and had admitted in his statement that he was aware of the smuggling activity. His involvement was corroborated by the searches of the premises conducted on the basis of his clues and the recovery of silver therefrom. As regards Jagdish Shanker Trivedi (Appeal No. C/360/99), it was held that he knew about the silver which was carried in the vehicle in a secret cavity in the Maruti Gypsy in which he travelled and was involved in the transporation of the contraband goods to Delhi. As regards Dilip Kumar Singhal, it was held that he was a partner of M/s Ram Avatar Naresh Kumar and tat on the morning of 18.12.1992, he was the person who woke up the driver Ram Kumar Kashyap, and loaded 25 silver bricks in the Maruti Gypse No. UP 78F/5344 and had knowledge of the contraband silver being transported to Delhi in a concealed manner, and was thus directly concerned with concealing, melting and transporting the contraband silver to Delhi."
10. The Tribunal considered the contention of the appellant with regard to the alleged denial of principles of natural justice by not offering witnesses for cross-examination and held in paragraph No. 7.2, 9 and 10 of the impugned order as under:
"7.2 In the present case, however, ample opportunity were given to Ashish Kumar Chaurasia and other appellants to deal with the material which was sought to be relied on against them by referring it in the show cause notice. We have no reason to doubt the statement made in the impugned order that as many as forteen opportunities of personal hearing were given from 5.2.1994 to 16.11.1998 to the appellants and the desired persons for cross-examination were also called, but, either adjournments were sought on one ground or other or irrelevant enquiries were raised with the result that proceedings of personal hearing could not be conducted properly. It was, therefore, rightly held that there was no justification for prolonging the adjudication. It is evident from the record that the appellants whose statements were recorded under Section 108 of the said Act had made confessional statements implicating themselves under Section 112 of the Act and such statements were clearly binding on them. There was no question of their statements being recorded under duress, because as noted above, on 18.12.1992 when two vehicles were intercepted at two distant places namely at Kanpur and Ghaziabad near Delhi, statements of four different persons were recorded by different sets of officers reflected the involvement of the same persons including the appellant, Ashish Kumar Chaurasia, and there was no possibility of the same story being cooked up at two different places by the department. The drivers of the two vehicles had no enmity against the appellant Ashish Kumar Chaurasia, or the appellant Ram Avatar Singhal and their version, whowing the involvement of Ashish Kumar Chaurasia as the person who kept the silver ingots of foreign origin concealed in his premises and giving them to Ram Avatar Singhal for melting and disposing them of, has a ring of truth. If statements were recorded under compulsion and duress at two different places by two different sets of officers, when two vehicles carrying contraband silver were intercepted there would hardly be any scope for the same persons being involved. Jagdish Shanker Trivedi was a lawyer by profession and he would have not given any statement under pressure on 18.12.1992. This subsequent retraction by stating that he only took a lift because of curfew is a blatant effort to riggle out of the reality that reflected in the statements of the driver, Ram Kumar Kashyap and other witnesses. The confessional statements of the appellants who made them were binding on them. In this context, we may refer to the decision of the Supreme Court in Surjeet Singh Vs. Union of India reported in AIR 1997 SC 2560 where the petitioner sought cross-examination of the witnesses who said that the recovery was made from the premises of the petitioner, held that the confession made by the petitioner was binding on him and, therefore, failure to give him the opportunity to cross-examine the witnesses was not violative of principles of natural justice. In para 3 of Hon'ble the Supreme Court judgment held:
"3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, witnesses were required to be called. But in view of the confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the Panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner."
It may be noticed that the above observations made even though the petitioner had retracted within six days from the confession. The Supreme Court held that confession though retracted is an admission and was binding on the petitioner and, therefore, there was no need to call panch witnesses for cross-examination of the witnesses. Therefore, so far as the appellants whose statements were recorded under Section 108 of the said Act and who had clearly confessed to their involvement, there would be no violation of the principles of natural justice as the witnesses were not required to be produced for cross-examination of the witnesses on the aspects which were confessed by them. In the present case, even after the retraction, there have been statements, recorded on 3.1.1993 amounting to confessions.
9. As noted above, all the noticees including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employees of the appellant Ashish Kumar Chaurasia and the statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with prohibited silver and were liable to imposition of penalty under Section 112 of the said Act. In such a situation insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. In almost all the cases such persons dealing in contraband would refuse to be cross-examined on the ground that they are accused of an offence and, had a fundamental right against testimonial compulsion under Article 20 (3), and thereby create a situation where each one of them breath, would ask for cross-examination of the other and refuse to be cross-examined, and then contended that refusal has resulted in failure of proper hearing. Therefore, principles of natural justice do not require that in matters like this, persons who had given information should be allowed to be cross-examined by the co-noticees on the statements made before the customs authorities. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-noticees by each one refusing to be cross-examined by resorting to Article 20 (3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, "various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up." It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justices.
10. The appellant Ram Avatar Singhal was in the business of melting silver and was a jeweller. He, in his statement recorded on 19.12.1992, has admitted that he was a partner along with his nephew, Dilip Kumar Singhal in the firm of M/s Ram Avatar Naresh Kumar. He stated that Ashish Kumar Chaurasia was a friend of his nephew and that he knew him well since the last 10 years. He also stated that Ashish Kumar Chaurasia was dealing in milk and having a shop. He stated that two months prior to this statement, Ashish Kumar Chaurasia alias pappu, doodhwala had asked him whether he (Ram Avatar Singhal) would melt silver of foreign make that he would bring. Ram Avatar Singhal agreed to do so. Thereafter the appellant Ashish Kumar Chaurasia, as agreed, used to bring silver ingots of foreign make for getting them melted in his refinery for which Ram Avatar Singhal was paid at the rate of Rs. 50/- per kg. He then admitted that after melting such ingots, he used to send them for sale in his vehicles though his driver, Ram Bilas Mandal and Jagdish Shanker Trivedi alias Jijaji of his friend (Ram Kishore Mishra). He then admitted that he had melted 58 to 60 foreign marked contraband silver ingots and sent them to Delhi. He further stated that Ashish Kumar Chaurasia used to conceal the smuggled silver ingots in his dairy famr at Kishori Ka Chata, Pony Road, Shuklaganj, Unnao. He also stated that his firned, appellant Ram Kishore Mishra, who was a small time jeweller was sent by him to Delhi for selling the silver slabs and was paid Rs. 1000/- per trip. He admitted that on the morning of 18.12.1992, he had sent Ram Kishore Mishra with his driver Ram Bilas Mandal in his vehicle bearing No. MP 09-H/2648 with 25 silver slabs which were made by him by melting the foreign marked silver ingots in his refinery/factory. He had come to know that the vehicle was intercepted. He also stated that there was a concealed place in the vehicle for keeping the silver. The cavities were specially made in the car to transport the silver so that it was not detected. He also admitted that he had sent 25 silver slabs which were recovered from his Maruti Gypsy. The driver, Ram Kumar Kashyap was accompanied by Jijaji (Jagdish Shanker Trivedi) in the Maruti Gypsy which was also intercepted. He also admitted that 14 silver slabs and one silver 'thakia' (lump) were recovered from his refinery/factory. In his statement recorded on 20.12.1992, he again referred to the concealed cavities in the vehicles stating that Ashish Kumar Chaurasia had got them made. he has also stated that Ashish Kumar Chaurasia had shown to him the place where he was concealing the silver. He stated that Ashish Kumar used to bring silver ingots in his vehicle to his refinery for getting them melted. He used to bring 7 to 8 silver ingots at a time. He further stated that he was keeping the account of the sale of silver and was paid Rs. 20/- per kg. by Ashish Kumar Chaurasia who used to note down in his own diary."
11. The contention of the appellant that he let out a portion of his doodh ki dairy to one Sri Ram Avatar Singhal and, therefore, he was not liable in respect of the seized silver of foreign origin was considered by the Tribunal and the finding of fact was recorded in paragraph No.11 of the impugned order as under:
"Both the drivers in their statements admitted the interception of their respective vehicles and the recovery of the contraband silver from their cavities, one at Kanpur and the other at Ghaziabad, which were taken to the respective customs offices for search under Panchnamas. Both the drivers in their statements clearly shows their connection with Ram Avatar Singhal. Ram Kishore Mishra, who was accompanying the maruti van which was intercepted near the railway station at Kanpur had stated that the silver belonged to Ram Avatar Singhal, at whose direction, it was being taken to Delhi. He also told the officers that Ram Avatar Singhal had melted the silver ingots of foreign make and converted them into silver slabs in his refinery, address of which was given. He gave the information that foreign marked silver ingots were concealed in the ground of the premises of the doodh ki dairy owned by Ashish Kumar Chaurasia, alias pappu doodhwala. It is on the basis of this information, the customs officers proceeded to the said dairy farm from where they recovered 79 ingots of silver of foreign make under a panchanama. The panchnama and the statements of panchas vividly described how Om Prakash, the employee of Ashish Kumar Chaurassia pointed out the spot in the dairy farm of Ashish Kumar Chaurassia which was dug up and from where 79 ingots of silver of foreign make were recovered. They had also recorded the statement of Om Prakash that Ashish Kumar Chaurasia had concealed something in that portion of the dairy. It is clear that at that time, there was nothing to indicate that the said portion was let out on rent to Ram Avatar Singhal. Ram Avatar Singhal had denied of having been let out any portion of the dairy farm. The appellant Ashish Kumar Chaurasia has tried to clinch the issue by referring to some suit filed by his brother mentioning that a part of the dairy farm was given on the rent of Rs. 200/- to Ram Avatar Singhal. In that suit, a prayer was sought in the Civil Court for removal of some wall which was erected. No certified copy of the plaint was produced. It appears that though that suit came to be decided ex-parte much later, there was no attempt made to bring the fact of any rented portion being misused by Ram Avatar Singhal on the record of the proceedings. If there was any element of truth in the defence sought to be put up by Ashish Kumar Chaurasia that the silver ingots were recovered from a portion let out to Ram Avatar Singhal then that would have been brought on record in the suit filed by his brother in which he was made a supporting party. No prayer for eviction was sought in that suit. In view of the positive evidence, in the nature of statements of several witnesses, it is clear that the silver ingots were dug out from the premises which were in possession and control of Ashish Kumar Chaurasia. There was no reason for Om Prakash to falsely implicate his master. Having regard to the various statements earlier made by the noticees and other witnesses, it is evident that subsequent attempt was made by some of the appellants to retract them in the criminal proceedings was only an after-thought. After their retraction before the judicial magistrate, statements were again recorded on 3.1.1993 which later statements had not been retracted. Driver, Ram Bilas Mandal had no axe to grind against the appellants. His statement clearly implicates Ram Avatar Singhal, Jagdish Shanker Trivedi, Ram Kishore Mishra and Dilip Kumar Singhal. As regards Dilip Kumar Singhal, he clearly stated that he woke him up in the morning and got the 25 silver slabs loaded in the Maruti Gypsy in its concealed cavity made, which was intercepted at ghaziabad. Ram Bilas Mandal was an employee of the appellant Ram Avatar Singhal residing with him and he had no reason to wrongly implicate Ram Avatar Singhal or Ashish Kumar Chaurasia. Driver, Ram Bilas Mandal had known about the place where the silver was concealed in the premises of Ashish Kumar Chaurasia. From his statement also, it transpires that he used to take the contraband silver to Delhi and was at times accompanied by Ram Avatar Singhal, Ashish Kumar Chaurasia, Jagdish Shanker Trivedi alias Jijaji, and Ram Kishore Mishra. He has stated that Ram Kishore Mishra was a friend of Ram Avatar Singhal. Even in the statement recorded on 3.1.1993 Ram Bilas Mandal has admitted that he was driving the vehicle when it was intercepted and that contraband silver was recovered from it. He had stated that he was paid salary by Ram Avatar Singhal and the payment for going to Delhi was separately given by Ashish Kumar Chaurasia, alias Pappu Doodhwala."
12. From the findings of fact recorded by the Tribunal which is the last fact finding authority, it is evident that ample opportunity was afforded to the appellant during the course of adjudication proceeding. The appellant was involved in smuggling silver. Seventy nine silver bricks of foreign origin were recovered and seized from his doodh ki dairy. The place where these silver were concealed, was shown by the employee of the appellant, namely, Om Prakash whose statement was recorded under Section 108 and he clearly stated that the recovered silver was kept by the appellant in his doodh ki dairy. The appellant could have produced his aforesaid employee Om Prakash in evidence but he had not produced him. The story built by the appellant for letting part of the premises of the doodh ki dairy to one Sri Ram Avatar Singhal and that a suit for eviction was filed by his brother; was not found supported by any evidence. No document could be produced by the appellant that the silver seized was validly imported. At least 79 smuggled silver ingots were found from the premises of the appellants i.e. his doodh ki dairy which fact could not be denied by the appellant by producing any credible evidence as per provisions of Section 123 of the Act. The burden to prove that the 79 silver ingots of foreign origin recovered from the premises of the appellant were not smuggled goods, was on the appellant since it was seized from the premises in possession of the appellant. The appellants have completely failed to prove that the aforesaid seized silver was not smuggled goods.
13. Under the circumstances the levy of penalty for improper importation of silver by the appellant as well as confiscation of the silver are wholly justified. The penalty was imposed by the Commissioner, Customs under Section 112 (b) of the Act on consideration of the relevant materials and evidences on record and after following the principles of natural justice.
14. In view of the above discussions and peculiar facts of the case, we do not find any infirmity in the impugned order. The question of law is answered in affirmative i.e. in favour of the revenue and against the assessee. The appeal fails and is hereby dismissed.
Order date: 14.07.2015
MT
(Surya Prakash Kesarwani,J.) (Tarun Agarwala,J.)