Madras High Court
Stalin Joseph vs The Commissioner Of Customs ... on 4 March, 2021
W.A.Nos.360 & 363 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Judgment Reserved On Judgment Pronounced On
17.02.2021 04.03.2021
W.A.Nos.360 & 363 of 2021
and
C.M.P.Nos.1435 & 1440 of 2021
Stalin Joseph,
S/o Sebastian,
9A, BB Road,
Perambur,
Chennai-39. .. Appellant/Petitioner
in both Appeals
-vs-
The Commissioner of Customs (Airport),
New Customs House,
All Cargo Complex,
Meenambakkam,
Chennai-600 027. .. Respondent/Respondent
in both Appeals
1/26
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Appeals under Clause 15 of the Letters Patent against the orders
dated 09.11.2020, in W.P.Nos.5499 of 2013 and 5495 of 2013.
For Appellant : Mr.Karthik Seshadri
(In both Appeals)
For Respondent : Mr.G.Renganathan,
(In both Appeals) Central Govt. Jr. Standing Counsel
******
COMMON JUDGMENT
T.S.Sivagnanam, J.
These appeals have been filed challenging two separate orders passed
in W.P.Nos.5499 and 5495 of 2013, both dated 09.11.2020.
2.The appellant/writ petitioner challenged the orders passed by the
Commissioner of Customs (Airport and Air cargo), Chennai dated
30.11.2012, in Order-in-Original Nos.639 and 640 of 2012.
3.The writ petitions were dismissed by the learned Single Bench on
the ground that there is no acceptable explanation given by the appellant for
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not having resorted to the alternate remedy of filing an appeal before the
Customs, Excise and Service Tax Appellate Tribunal. The learned Writ
Court placed reliance on the decision of the Hon'ble Supreme Court in
Assistant Collector of Central Excise vs. Dunlop India Limited [(1985) 1
SCC 260 (SC)].
4.Since the facts are identical, it would suffice to refer to the Order-
in-Original No.640 of 2012, which is subject matter of W.A.No.360 of
2021.
5.Based on the intelligence gathered by the Directorate of Revenue
Intelligence (DRI), Chennai Zonal Unit to the effect that certain
persons/importers were importing branded glass chatons under the guise of
artificial stones/imitation stones, etc., by mis-declaring the value of the
consignments and misusing IECs through the Air Cargo complex at Chennai
as well as through the Seaport at Chennai, investigation was conducted by
the DRI and show cause notice dated 26.03.2011, was issued to several
persons and the appellant before us, Mr.Stalin Joseph, was one of the
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noticees. The proposal in the show cause notice as against the appellant and
three others, viz., M/s.Abi Sathiya Enterprises, Mr.Zahir Hussain and
Mr.T.Suresh is as hereunder:-
“(a) The description of the goods declared as
“Decoration Artificial Stones (Mix Model and sizes in
various colors)” imported under Bill of Entry
No.652589 dated 08.10.2010 should not be rejected
and held as “Glass Chatons”;
(b) The value declared @ $ 7.5/kg in respect of
the said item referred to in (a) above, imported under
Bill of Entry No.652589 dated 08.10.2010 should not
be rejected in terms of Rule 12 of the Customs
Valuation (Determination of Price of Imported Goods)
Rules, 2007 read with Section 14(1) of the Customs
Act, 1962;
(c) The value should not be re-determined as $
97 CIF/kg in respect of the said item referred to in (a)
above, imported under Bill of Entry No.652589 dated
08.10.2010 under Rule 9 of the Customs Valuation
(Determination of Price of Imported Goods) Rules,
2007 read with Section 14(1) of the Customs Act, 1962.
(d) The goods totally valued at
Rs.2,02,71,041.78/- (A.V.) imported vide Bill of Entry
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No.652589 dated 08.10.2010 and seized, should not be
confiscated under Section 111(d) and 111(m) of the
Customs Act, 1962;
(e) Penalty should not be imposed on them under
Section 112(a) of the Customs Act, 1962; and
(f) Penalty should not be imposed on them under
Section 114AA of the Customs Act, 1962.”
6.The appellant was issued with another show cause notice dated
June, 2011 in which, the appellant and two others viz., Mr.T.Suresh and
Mr.S.Antony were called upon to show cause as to why penalty should not
be imposed on them under Section 112(a) and 114AA of the Customs Act,
1962 (hereinafter referred to as “the Act”).
7.To be noted that in the show cause notice dated 07.06.2011, which
culminated in Order-in-Original No.639 of 2012, which is subject matter of
W.A.No.363 of 2021, the proposal against the appellant and two others viz.,
Mr.T.Suresh and Mr.S.Antony was to show cause as to why penalty should
not be imposed on them under Section 112(a)/114AA of the Act.
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8.The appellant filed his reply dated 10.02.2011, inter alia denying
the allegations made in the show cause notice and that the allegations are
only reproduction of the statements recorded by the officers. The appellant
further stated that one Mr.B.Vaithiyanathan/Mr.Mohammed Saleem, is the
Proprietor, who had imported the goods through Chennai Airport and that
the appellant has not received any money from any person and he had fully
cooperated with the Department till the conclusion of the investigation.
9.The allegation made in the show cause notice that the appellant had
actively associated for import of such imitation stones on monetary
consideration, was denied. Further, by referring to the facts set out in the
show cause notice, the appellant contended that he is in no way connected
or involved in the import and that he should not be held responsible for the
act of commission or omission by other parties with fraudulent intentions.
Further, the appellant contended that penal proceedings are quasi criminal
in nature and the Department ought to prove and establish mens rea on the
part of the accused before inflicting penalty. The appellant placed reliance
on certain decisions to support such contention.
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10.Further, the appellant denied the allegations that he was an abettor
and stated that in order to constitute abetment, the abettor must be shown to
have intentionally aided to the commission of crime, mere proof of alleged
crime would not have been committed without the interposition of the
alleged abettor, if not informed compliance with requirement of Section 11.
This submission was made by referring to the decision in the case of Sriram
vs. State of Uttar Pradesh [(1975) 3 SCC 495]. The appellant requested for
grant of personal hearing and also to permit him to cross examine
Mr.D.Vaithiyanathan, Mr.Mohammed Saleem, Mr.Zahir Hussain and
Mr.T.Suresh after which, he agreed to submit a detailed reply. The reply
dated 10.02.2011, was followed by another representation dated 13.02.2011,
in respect of the show cause notice dated 26.03.2011, where under, the same
stand as taken in the reply dated 10.02.2011, was reiterated and in addition,
it was contended that before any reliance could be placed on the statement
recorded under Section 108 of the Act, the contents of the statement,
particularly those of the co-accused have to be corroborated with
independent evidence and if not done, the statement so recorded is not
admissible in evidence. Once again, the appellant submitted another
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representation dated 13.02.2012 wherein, the stand taken in the earlier two
representations/reply, were reiterated.
11.The Adjudicating Authority, viz., the Commissioner of Customs
(Airport and Air Cargo) took up the case and by separate orders dated
30.11.2012, rejected the stand taken by the appellant denying his role in the
matter and also rejected the prayer for cross examination by assigning
certain reasons and imposed penalty under Section 112(a) read with Section
114AA of the Act. The said orders were subject matter of challenge in the
writ petitions.
12.Three grounds were raised in the writ petitions, viz., (i) the order
imposing penalty is in violation of the principles of fair play and justice; (ii)
the order is violative of Article 21 of the Constitution of India; and (iii) the
order is in violation of the principles of personal hearing (natural justice).
13.The respondent/Department had filed a counter affidavit setting
out the factual position and raising a preliminary objection as regards the
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maintainability of the writ petitions, as the appellant did not avail the
statutory appellate remedy before the Tribunal.
14.To be noted, the writ petitions were filed during March, 2013 and
were pending before this Court. When the cases was taken up for hearing
by the learned Single Bench, during November, 2020, the Court found that
there was no acceptable explanation from the appellant as to why he did not
avail the appellate remedy before the Tribunal and therefore, dismissed the
writ petitions as not maintainable and that the Court is not inclined to delve
into the merits of the controversy involved in the case, touching upon the
disputed questions of fact for effectual and complete adjudication of the
matter.
15.Mr.Karthik Seshadri, learned counsel appearing for the appellant
would contend that the writ petitions, having been entertained in the year
2013, ought not have been dismissed after a period of seven years on the
ground of not availing the alternate remedy, without considering the
contentions raised by the appellant in the writ petitions. It is further
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submitted that the main ground, on which the appellant had filed the writ
petitions, was by contending that the initiation of the proceedings against
him was in gross violation of the principles of natural justice, the appellant
was not an importer and was sought to be implicated on the basis of mala
fide action of high ranking officials of the DRI, against whom, the appellant
had filed criminal complaint, who were charged under the provisions of the
Prevention of Corruption Act for demand of illegal gratification in a case
registered by the Central Bureau of Investigation (CBI).
16.Further, it is contended that though the appellant has sought for
cross examination of the material evidences and copies of the documents,
without affording such an opportunity, the order has been passed by the
Adjudicating Authority, which shows that the order is in violation of the
principles of natural justice and therefore, the writ petition was
maintainable. In support of the contention that the exhaustion of alternate
remedy is a principle of self-limitation, the learned counsel placed reliance
on the decision of the High Court of Allahabad in Novamet Industries vs.
Union of India [2008 (227) E.L.T. 363 (All.)].
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17.With regard to the aspect of denial of the request for cross
examination and that such denial could not have been part of the
adjudication order, the learned counsel placed reliance on the decisions of
the High Court of Gujarat in the case of Vulcan Industrial Engineering Co.
Ltd., vs. Union of India [2013 (297) E.L.T. 190 (Guj.)] and Mahek Glazes
Pvt. Ltd., vs. Union of India [2014 (300) E.L.T. 25 (Guj.)], the decision of
the Hon'ble Supreme Court in Andaman Timber Industries vs.
Commissioner of C.Ex., Kolkata-II [2017 (50) S.T.R. 93 (SC)] and the
decision of the High Court of Kerala in Ummer Abdulla vs. Commr. Of
C.Ex., Cus. & Service Tax, Calicut [2019 (367) E.L.T. 181 (Ker.)]. On the
above grounds, the learned counsel sought for setting aside the Order-in-
Original and remanding the matter to the original authority, affording an
opportunity of cross examination to the appellant and thereafter, to re-
adjudicate the matter in accordance with law.
18.Mr.G.Renganathan, learned Central Government Junior Standing
Counsel appearing for the respondent submitted that the adjudicating
authority, viz., the Commissioner of Customs, has threadbare analysed the
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factual position and brought out the role of the appellant in the transaction
to justify his decision to impose penalty and that the writ petition was not
maintainable and the learned Single Bench had rightly dismissed the writ
petition.
19.We have elaborately heard the learned counsels for the parties and
carefully considered the materials placed on record.
20.Mr.Karthik Seshardri, would be right in his submission that when
a writ petition has been admitted and pending since 2013, it may not be
appropriate for the writ petition to be dismissed, after seven years, on the
ground of availability of alternate remedy under the provisions of the Act.
However, this contention has its own exceptions, which we are not required
to go into, as the learned counsel for the appellant had made elaborate
submissions on the appellant's right to seek for cross examination and as to
how the denial of such right would vitiate the order of adjudication passed
by the respondent/authority. Therefore, we are inclined to take up the
matter for a decision on merits, rather than to relegate the appellant to
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avail the alternate remedy, since the pleadings were complete in the writ
petitions, though the decision in the case of Dunlop India Limited (supra)
has held that Court must have good and sufficient reason to bypass the
alternate remedy provided by statute.
21.What weighed in our minds is that the writ petition was pending
before this Court from the year 2013 and therefore, it will be harsh on the
appellant to be now relegated to file an appeal before the Tribunal more so
when, the respondent/Department had filed their counter affidavit in the writ
petition seeking to sustain the Order-in-original.
22.We have carefully gone through the Order-in-Original, which is an
elaborate order.
23.The outcome of the investigation was that Mr.Zahir Hussain was
the actual owner of the goods imported by M/s.Abi Sathiya Enterprises and
Mr.Zahir Hussain, in connivance with the appellant and Mr.T.Suresh, had
imported branded glass chatons in the guise of artificial stones by grossly
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under invoicing the value of the consignment by misusing IECs, issued in
the name of M/s.Abi Sathiya Enterprises. Similar is the outcome of the
investigation in the other case as well.
24.The reply given by the appellant has been dealt with by the
adjudicating authority from paragraph 80 of the Order-in-Original No.640
of 2012 and from paragraph 40 of the Order-in-Original No.639 of 2012.
25.With regard to the representation given by the appellant,
requesting for cross examination, the same has been dealt with by the
Adjudicating Authority by observing that the appellant had no intention of
defending the charges levelled against him in the show cause notice, but to
cast aspersions on DRI. Further, it was observed that the Department has
supplied documents relied upon in the show cause notice and informed the
appellant that the documents called for by him regarding one Shri.Venkat
could not be supplied to him, since they have not been relied upon by the
DRI and therefore, not available or provided to the Department. Further, it
was observed that the Adjudicating Authority cannot go beyond the charges
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levelled in the show cause notice and that it cannot go beyond the
documents relied upon or found relevant to the case.
26.Further, the Adjudicating Authority pointed out that in spite of the
relied upon documents having been supplied, once again another set of
documents were supplied to ensure that the action of the Department is fair
and reasonable. Further, it was observed that it was always open to the
appellant to provide further evidence or documents, which in his opinion,
would be useful in his defence and furnish the same at the time of personal
hearing. Further, the conduct of the appellant was pointed out, as the
appellant did not honour the summons issued by the Department, did not
participate in the investigation, applied for Anticipatory Bail, which was
dismissed by the Court or withdrawn by the appellant himself and even
thereafter, did not avail the opportunity to participate in the investigation,
but chose to abscond.
27.With regard to as to how the appellant was involved in the
transaction, the same has been brought out in paragraphs 81 and 82 of the
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adjudication order. Further, the Adjudicating Authority has referred to the
statements dated 03.12.2010 and 10.12.2010 given by Mr.R.Guruprasath,
who was employed with M/s.Kotak Mahindra Bank at the relevant time and
later, shifted to M/s.DLF Pramerica Life Insurance, who had gone on record
to state that the appellant approached him for arranging bankers cheques
without revealing his or his company's identity and that he had no
knowledge of such accounts and he asked Mr.Manoj Kumar Ojha, who was
his colleague in the same Bank about the said requirement and Mr.Manoj
Kumar Ojha, after about two weeks time, told him to deposit the cash in the
accounts of M/s.Anshika Enterprises and Shri Rakesh Upadhaya to take
bankers cheques favouring Commissioner of Customs. Further, the
investigation had revealed that Mr.Manoj Kumar Ojha opened dummy
accounts in the names of M/s.Anshika Enterprises and Shri Rakesh
Upadhaya, who was his brother-in-law and he had exploited his colleague
Mr.R.Guruprasath working in Kotak Mahindra Bank by throwing a weight
based on the commission offered by the appellant, they connived with
Mr.R.Guruprasath and issued bankers cheques in favour of the
Commissioner of Customs from the accounts of Shri Rakesh Upadhaya and
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M/s.Anshika Enterprises and as per the arrangement Mr.R.Guruprasath had
with the appellant, the commission was shared between Mr.R.Guruprasath
and himself and one Mr.Mini and Mr.T.Suresh. Further, it has been pointed
out that the bankers cheques, which were obtained from ICICI Bank,
Sowcarpet Branch, Chennai from an account standing in the name of
Mr.Sebastian Michael contained the address of the appellant and contained
the photograph of the appellant, thus, establishing that the appellant had
fraudulently opened a bank account in the name of Mr.Sebastian Michael
and had given his address and photograph and this account was used by the
appellant to operate fraudulently in a fictitious name of Mr.Sebastian
Michael. Thus, the appellant had switched his entity by
projecting/impersonating himself as Mr.Sebastian Michael with a view to
camouflage the whole transaction of payment of customs of duty, so that the
source of money could never be traced to him and he could conveniently
evade from getting caught of any later stage of fraud, being exposed.
28.Further, it has been brought out that the entire gamut of financial
transaction of the appellant are based on misrepresentation of facts by way
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of submitting wrong details and documents to the bank and this was able to
be accomplished by the appellant, since he had contacts with bank
employees, who were in lust of money. Further, on a thorough analyse of
the factual details, it was established that the appellant had obtained the
bankers cheques issued through bogus firms floated by him for the purpose
of making indirect payment of customs duty and for other transactions.
Further, the Adjudicating authority referred to the statements recorded under
Section 108 of the Act, which clearly pins down the appellant in the
fraudulent transaction.
29.Further, the adjudicating authority has pointed out that the
appellant has not explained as to why he impersonated himself as
Mr.Sebastian Michael, opened a bank account by giving his photograph and
his address and issued a cheque in favour of the Commissioner of Customs
as well as deposited money in cash in various dummy accounts and why he
obtained bankers cheques by depositing money by cash payment in the
dummy accounts in the name of M/s.Anshika Enterprises and Shri Rakesh
Upadhaya. It is seen that the appellant has not been able to dislodge these
facts, which emerged during the course of investigation.
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30.With regard to the plea that the appellant should be permitted to
cross examine every person, the Adjudicating Authority, in our view, rightly
pointed out that such request has to be considered based on facts and
circumstances of each case. After referring to the factual matrix, the
Adjudicating Authority concluded that the request for cross examination
was a mere ploy and to scuttle and delay the adjudication process. The
conduct of the appellant is clearly brought out in the adjudication order that
he has been evading the summons and absconding and not availing the
opportunity of personal hearing. After elaborately discussing all the factual
matrix, the Adjudicating Authority held that the other co-noticees have not
retracted their statements given under Section 108 of the Act and the plea
made by the appellant for cross examination is only for dragging on the
proceedings and therefore, there are enough and valid grounds to deny such
request. The facts, which have been brought out by the Adjudicating
Authority in the Order-in-Original, clearly expose the appellant's role.
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31.We agree with the finding of the Adjudicating Authority that the
plea raised by the appellant demanding cross examination is only with a
view to drag on the matter. In fact, in the reply/representations, which the
appellant had sent, he has not been specific as to why he requires cross
examination because, the appellant has not brought out any independent
facts or evidence as his defence to the allegation made against him in the
show cause notice. The reply is a bald denial of the entire allegations
stating that the appellant is not involved in the import of the said items.
However, during the course of investigation and while considering the
entire matter, the Adjudicating Authority has been able to bring out the facts
as to how the appellant has impersonated himself, opened bank account in
the name of a fictitious person, remitted customs duty by effecting cash
payment in dummy bank accounts, opened in the name of an Enterprise and
one Shri Rakesh Upadhaya. Therefore, we are of the view that the facts and
circumstances of the case would clearly show that the request for cross
examination is devoid of merits, lacks bonafide and rightly denied by the
Adjudicating Authority.
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32.It was argued before us that the appellant has been framed by the
investigating agency as well as the Department on the ground that he had
lodged a complaint before the CBI and certain officers of the DRI have been
charged. Therefore, the appellant would seek to argue that the proceedings
are vitiated on account of mala fide. If this is the case of the appellant, then
there should be specific allegation against the named officers against whom,
he alleges mala fide or bias. Admittedly, no such officer has been made a
party to the writ petition. Therefore, the plea of mala fide exercise of power
has to be definitely rejected.
33.So far as the decision in the case of Vulcan Industrial
Engineering Co. Ltd., (supra) is concerned, the case was on a different
factual background, where the request for cross examination was never
decided by the Adjudicating Authority and the Order-in-Original was
passed whereas, in the case on hand, the request for cross examination has
been considered and a decision has been rendered by the Adjudicating
Authority in the Order-in-Original, which we find to be just and proper.
Therefore, the said decision is of no assistance to the case of the appellant.
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34.In the case of Mahek Glazes Pvt. Ltd. (supra), the Court did not
express any opinion on the issue as to whether the petitioner therein had a
right to seek cross examination in the facts of the said case and the Court
went to the extent of observing that it refuses to comment on the petitioner's
insistence for cross examination or the authority's reluctance to grant it.
Further, the said decision was relied on to state that the request of cross
examination should have been decided separately and not along with the
Order-in-Original. This proposition cannot be canvassed by the appellant,
as the Adjudicating Authority has clearly brought out the conduct of the
appellant at the stage of the investigation and even after the show cause
notice was issued. The appellant did not cooperate with the adjudication
process, was unsuccessful in obtaining an order of Anticipatory Bail and he
was absconding. More importantly, the statements, which were given by
the other co-noticees, which have been referred to by the Department, have
not been retracted and remained as such. Therefore, the Adjudicating
Authority was right in observing that the request for cross examination was
a ploy and only to drag on the proceedings. That apart, if the co-noticees,
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who were examined and who have given statements which clearly brings
out the role of the appellant, then the appellant should set up his defence by
placing reliance on some evidence available with him and establish that on
account of the defence available with him, his request for cross examination
is justified.
35.We have perused the replies given by the appellant to the show
cause notices and all that we find is a simple denial of his involvement. The
fact position opens a pandora's box, which clearly brings out the deep
rooted involvement of the appellant in the entire process. Therefore, the
decision in Mahek Glazes Pvt. Ltd. (supra), is clearly distinguishable.
36.The decision in the case of Andaman Timber Industries (supra)
and Ummer Abdulla (supra) are cases, which arise out of an order passed
by the Tribunal, which were challenged by filing an appeal before the High
Court, where the Court decided the substantial questions of law. However,
in the instant case, the appellant had filed a writ petition. Therefore, the
questions of law, which have been decided in those cases were done after
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the Tribunal, being the last fact finding authority, had given a conclusive
finding on facts and the Court proceeded to decide the substantial questions
of law raised before it. Therefore, the appellant cannot press into service
those decisions to support his case.
37.For all the above reasons, we find that the request made by the
appellant to cross examine few of the co-noticees, who were also involved
in the transaction was rightly denied by the Adjudicating Authority and no
prejudice has been caused to the appellant on the said ground. The reasons
assigned by the Adjudicating Authority to deny cross examination, taking
note of the factual situation, is well founded. That apart, the other co-
noticees have not retracted their statements rendered by them under Section
108 of the Act, which is binding.
38.In the light of the above discussion, we hold that the order passed
by the Adjudicating Authority does not suffer from any error of law for
interfering with the same.
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39.Accordingly, the writ appeals are dismissed and the orders passed
by the Adjudicating Authority are confirmed. No costs. Consequently,
connected miscellaneous petitions are closed.
(T.S.S., J.) (R.N.M., J.)
04.03.2021
Index: Yes/ No
Speaking Order : Yes/ No
abr
To
The Commissioner of Customs (Airport),
New Customs House,
All Cargo Complex,
Meenambakkam, Chennai-600 027.
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T.S.Sivagnanam, J.
and
R.N.Manjula, J.
(abr)
Pre-delivery Judgment made in
W.A.Nos.360 & 363 of 2021
04.03.2021
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