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S.G. Aswani Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(19)ELT187Tri(Kol.)kata
AppellantS.G. Aswani
RespondentCollector of Customs
Excerpt:
.....of reporting to the 1st counter of customs he was asked to declare categorically the goods and foreign currency he possessed. the appellant had declared the goods on which the customs duty amounting to rs. 4,520/- was paid vide b.r. no. a347730 dt.6-3-82. the appellant did not declare the foreign currency which he possessed as alleged by the revenue and the appellant opted for red channel. the appellant was intercepted at the exit gate by the superintendent of customs and was requested once again to declare categorically in a baggage declaration form all the items imported by him and carried in his suitcases/bag/and in his person. even then the appellant did not declare anything kept in his person. thereafter a personal search was made in the presence of two independent witnesses.....
Judgment:
1. Shri S.G. Aswani, 1, Toottee Lane, Calcutta-700016 has filed an appeal being aggrieved from Order No. 2 dated the 29th November, 1982 passed by the Additional Collector of Customs, Calcutta. The said appeal was presented in the Registry on the 27th day of August, 1983 along with a covering letter dated 27th August, 1983. In column 3 of the Memorandum of Appeal the date of the order has been mentioned as 11th April, 1982 and the date of receipt has been mentioned as 14th April, 1982. As per certified copy of the order the date of despatch is 11th April, 1982. There thus appears to be an error in typing as 1982 against the correct figure of 1983.

2. Shri S.V. Thawrani, Advocate has appeared on behalf of the appellant and has pleaded that the appeal was drafted for filing in the Tribunal but there was a judgment of the Tribunal to the effect that from an order passed by the Additional Collector, appeal lies to the Collector (Appeals) and with the bona fide belief the appellant has filed the appeal before the Collector (Appeals) on the 28th day of June, 1983 i.e. within 3 months from the date of communication of the order which is 14th April, 1983. He has submitted that the appellant had formed the belief in filing the appeal before the Collector (Appeals) owing to a two members decision of the Bench which was subsequently reversed by a special Bench of the Tribunal that the appeal lies from the order of the Additional Collector to the Tribunal. The appellant had received back the papers from the office of the Collector (Appeals) vide a covering letter dated the 26th August, 1983 and the appellant has filed the appeal before the Tribunal on the next day i.e., the 17th day of August, 1983. He has pleaded that it was bona fide belief and the appellant was prevented by sufficient cause in late filing of the appeal and as such the same should be condoned.

3. After taking into consideration the circumstances and the facts that the appeal was filed in a wrong Court I hold that the appellant was prevented by sufficient cause in the late filing of the appeal. It is a settled law that an appeal filed in a wrong court through bona fide mistake may be considered as sufficient cause so that the time during which an appeal has been pending in a wrong court may be excluded and the court may excuse the delay. Balwant v. Gomani, 5 Allahabad 591; Kamiruddin v. Bishnupriya, 33 CWN 76 (77); Kunwar Rajendra v. Rai Rajeshwar, AIR 1937 PC 276; Anadi Ram v. Mt. Chaduri, AIR 1956 Assam 63; State v. Man Mohan Lal, AIR 1966 or 219 (not cited by the parties).

In view of the above judgments and facts and circumstances of the case, I hold that the appellant was prevented by sufficient cause in the late filing of appeal. I am condoning the delay in the interest of justice but I would like to observe that there was no controversy under the Customs Act, 1962. As per definition under Section 2(8) of the Customs Act, 1962, Additional Collector includes Collector and the appeal from the order passed by the Additional Collector lies to the Tribunal.

4. Briefly the facts of the case are that on 6-3-82, the appellant Shri Aswani Sundar Gulabrai, holder of Indian Passport No. 267967 of 1, Tooteee Lane, Calcutta-16, arrived at Calcutta Airport from Bangkok by Thai Flight. At the time of reporting to the 1st counter of Customs he was asked to declare categorically the goods and foreign currency he possessed. The appellant had declared the goods on which the Customs duty amounting to Rs. 4,520/- was paid vide B.R. No. A347730 dt.

6-3-82. The appellant did not declare the foreign currency which he possessed as alleged by the Revenue and the appellant opted for Red Channel. The appellant was intercepted at the exit gate by the Superintendent of Customs and was requested once again to declare categorically in a baggage declaration form all the items imported by him and carried in his suitcases/bag/and in his person. Even then the appellant did not declare anything kept in his person. Thereafter a personal search was made in the presence of two independent witnesses when foreign currency viz. US $1253, Hongkong $50 and Philipines peso 49 were recovered from the underwear and the different pockets of coat worn by the appellant and from the purse of the appellant kept in his pocket, one gents wrist watch and one ladies wrist watch, all of foreign origin, were also recovered from different pockets of the coat worn by the appellant. The appellant has alleged that he has verbally declared the foreign currency. After going through the facts & circumstances of the case the Additional Collector had passed an order and confiscated the seized foreign currency under Section 111 of the Customs Act, 1962 read with the Reserve Bank of India's Notification dated 1st January, 1974 issued under Section 13 of the Foreign Exchange Regulation Act, 1973. The other seized goods viz., 1 pc. Gents Wrist watch, 1 pc. ladies wrist watch, 2 pcs. watch pens, 1 pc. calculator, were also confiscated under Section 111 of the Customs Act, 1962.

However, an option was given to the appellant to redeem the seized foreign currency on payment of a fine of Rs. 4,000 with the condition that if the above option of redeeming the foreign currency is exercised, the foreign currency on release should be handed over to an authorised foreign exchange dealer for encashment into Indian currency.

An option was also given to redeem the other goods on payment of a fine of Rs. 500 and payment of Customs duty at the applicable baggage rates.

A personal penalty of Rs. 300 was also imposed on the appellant under Section 112 of the Customs Act, 1962. The option of redemption was to be exercised within one month from the date of the order passed by the learned Additional Collector. Being aggrieved from the aforesaid order the appellant has come in appeal before this Court.

5. Shri S.V. Thawrani, advocate has appeared on behalf of the appellant and has pleaded that-(i) there is denial of the principles of natural justice, (ii) suppression of the letter written by the Enforcement Authorities, (iii) Sections 67 and 13 of the Foreign Exchange Regulation Act, 1973, are not applicable and hence the provisions of Sections 11 and 111(d) of the Customs Act, 1962 are also not applicable, and (iv) under Notification No. G.S.R. 91 dated 1st January, 1974 anybody can bring unlimited foreign currency into India.

The learned advocate has elaborately stated the facts on the case as mentioned in paragraph Nos. 1 to 16 of the Statement of the Facts forming a part of the Memorandum of Appeal. The main grievance of the learned counsel of the appellant is that there is complete denial of the principles of natural justice inasmuch as he was not allowed to cross-examine the concerned departmental officers and search witnesses.

The learned advocate has submitted that the case was posted for hearing on 5th January, 1982 and the officers viz,, Sarvashri R.N. Kacharia, Baggage Officer, M.K. Sil, D.K. Bhowmick, N.C. Sarkar and M. Sen Gupta were present. The learned advocate has stated that when he was starting cross-examination of the witnesses Shri R.N. Kacharia he found that Shri M.K. Sil was also sitting in the same room. The advocate objected to his presence stating that since the proceedings before the Additional Collector were quasi-judicial and it was a court, hence it was a universal practice of the Court that witnesses should be called one by one and any witness who is to give evidence should be present when the other witnesses whose statements are to be recorded should not remain there. The learned advocate has pleaded that the Additional Collector did not accede to the request and on the contrary stated that the departmental officers will have to defend themselves and they should be here. He had written that he want to examine the witnesses individually and the learned Additional Collector had given a receipt to the objection of the advocate. A copy of the same appears as Annexure E attached along with the Memorandum of Appeal. The same is reproduced as under :- "Shri S.V. Thawrani Advocate, accompanied by his client appeared for personal hearing today (5-6-82) at 3.30 P.M., mainly in connection with cross-examination of the officers of Customs concerned with this case. In response to the request sent to the officers S/Shri M.K. Sil, E.K. Bhowmick, N.C. Sarkar, N. Sengupta and R.N. Kacharia presented themselves at the appointed time for cross-examination by the advocate. When the cross-examination was about to start of Shri Kacharia, the Baggage Officer in this case the Advocate objected to the presence of other officers of Customs viz. the witnesses and move a written application dated 5-6-82 in this behalf. The Advocate pleaded that in the cross-examination procedure, he can always demand that other witnesses should not be present and wanted a decision on this point before proceeding with the case further.

Shri M.K. Sil, Supdt. of Customs present during the hearing made a request that he also should be given assistance of a departmental lawyer to present the case on behalf of the department and in particular to introduce their evidence before the defence counsel is allowed to cross-examine him. The other officers viz. witnesses also demanded the same assistance. Shri Sil also mentions that there is no legal bar to cross-examination of witnesses in presence of the other witnesses and, therefore. this should not be objected by the defence counsel. He further made a point that before his cross-examination if any other departmental witnesses are examined or cross-examined, the records of the same should be made available to him in advance before his own examination or cross-examination.

Shri Thawrani requested that an early date for hearing may be fixed when all the witnesses named earlier can be examined on the same date. He had nothing else to add.

The learned advocate has referred to the judgment of the Hon'ble Supreme Court in Civil Appeals Nos. 1362 and 1363 of 1967-Collector of Central Excise & Land Customs and Anr. v. Sanawatmal Purohit and Anr.

(reported in Compilation of judgments in Customs cases 1968-page 20).

He has pleaded that in that case the proceedings were vitiated because they infringed the principles of natural justice. He has stated that a quasi-judicial authority can act contrary to the principles of natural justice if it is acted upon an information collected by it which has not been disclosed to the party concerned and in respect of which full opportunity meaning the inference which arose out of it, has not been given. He has also referred to the Calcutta High Court judgment in Matter No. 400 of 1966 in the case of Tarak Das Paul and Anr. v.Additional Collector of Customs and Ors. (reported in Compilation of judgments in Customs cases page 74), wherein it was held that it was clearly the duty of the authority to give an opportunity to the petitioner to test the correctness of the statement of the witness by producing him for cross-examination specially when adverse inference was being drawn against the petitioner from the statement of the witness and that in absence of such procedure the proceedings were vitiated for non-observance of the rules of natural justice. In that case no opportunity for cross-examination was given and the appellant's application was accepted by the Hon'ble High Court. The learned advocate has pleaded that the provisions of Sections 13 and 67 of the F.E.R.A. 1973 are not applicable in this case and hence Section 11 of the Customs Act, 1962 is also not applicable. He has submitted that the appellant had verbally declared the foreign currency to the Customs officers. He has urged that in view of the legal position as per the provisions of the various Acts and the various judgments cited by him the appellant's appeal should be accepted.

6. In reply, Shri A.K. Deb Roy, the S.D.R., who appeared on behalf of the Respondent, denied all the 4 points raised by the learned Counsel.

He submitted that an opportunity for cross-examining the witnesses was duly granted to the appellant by the Revenue. He conceded that there is a letter of the Enforcement Directorate wherein the Enforcement Authorities had mentioned that no action is called for. He however stated that in the said letter dated 24-4-82, it is also mentioned that the Customs may take its own action in the matter under the Customs Act provided that there is no incriminating documents to show otherwise.

The S.D.R , therefore, stated that there is no bar for the Customs to proceed in the matter. He has also referred, to G.S.R. 91, dated 1-1-74 and has drawn the attention to the provisos to the said notification.

The said provisos reads as under : "Provided that the permission contained in this Notifn., to bring foreign exchange into India shall be available to any such person only who makes, on arrival in India, a declaration to the Customs Authorities in such Form as may be specified by the Reserve Bank of India in this behalf, of the particulars of all such Foreign Exchange brought in by him : Provided further that it shall not be necessary to make such declaration where the aggregate value of Foreign Exchange brought in by such person in the form of currency notes, bank notes or travellers cheques at any one time does not exceed U.S. $ 1000 or their equivalent." The learned S.D.R. pleaded that this notification does not authorise the bringing of foreign currency beyond the limit of US $ 1000. He stated that when a passenger lands, from the terminal he goes to the emigration department and after the Emigration formalities, he goes to the PRO Customs who directs him to the Baggage Section. It was pleaded by the learned SDR that the appellant should have declared the foreign currency to the PRO Customs and by not doing so the provisions of Section 11(4) of the Customs Act is attracted. He has also referred to the statement given by the appellant wherein he has admitted his meagre salary. He has also stated the search of the appellant was conducted in the presence of two independent witnesses. Further, the learned S.D.R.has drawn the attention of the court to the last para of Annexure 'G' to the Memorandum of appeal wherein the appellant's counsel had stated that if the proceedings are dropped against the appellant he would persuade his client to give up the right to cross-examine the witnesses and would close the case after arguments for about half an hour. He also has referred to Annexure 'H' of the Memorandum of Appeal and has pointed out that the line-'I hereby close the case for the defence and request for an early adjudication please'-has not been incorporated in the copies enclosed with the Memorandum of appeal. He also referred to the judgment of the Hon'ble Calcutta High Court in matter No. 254 of 1962 in Annapurna Oil Mills v. Asstt. Collector of Central Excise, wherein it has been held that when the party concerned has given up his prayer for examination of the witnesses, it cannot be allowed to agitate the same subsequently. The learned SDR also referred to the letter of the Asstt. Director, Enforcement Directorate dated 22-4-82 and has stated that the counsel for the appellant has suppressed the last lines of the said letter which goes against him. He has also referred to the judgment of the Calcutta High Court in Appeal No. 70 of 1976-Ashutosh Ghose and Anr. v. Union of India, where it has been held that denial of such cross-examination does not violate principles of natural justice provided the authorities have disclosed the materials relied upon for issue of show cause notice and subsequently allowed the parties to inspect the documents and take copies thereof. He has also referred to the Supreme Court in Kanugo & Co. v. Collector wherein it was held that the denial of cross-examination does not constitute denial of natural justice. He has also referred to the judgment of the Calcutta High Court in the case of Krishanlal Agarwal v. Collector of Land Customs in matter No. 67 of 1980 and has pleaded that the proceedings under the Customs Act are vaild (AIR 1967 Cal 80 pages 28, 29, 32). The learned S.D.R. went on to plea that as the appellant was carying foreign currency beyond the limit of US $ 1000 he ought to have declared the same in the prescribed form and not verbally. There was no harassment caused to the appellant and nowhere in the reply to the Show Cause Notice he has used the word harassment. He has also referred to the judgment of the Supreme Court in the case of Romesh Chander v.State of West Bengal reported in AIR 1970 SC 940 wherein it was held that the Customs Officers are not Police Officers and that the provisions of Section 25 of the Evidence Act do not apply. He has further submitted that as the appellant has not given any declaration, the provisions of Section 11 as well as Sections 67 and 13 of the FERA is also applicable to the appellant in view of the judgment of the Supreme Court (AIR 1972 648) in Agarwal Trading Co. He has stated the main purpose of these provisions is to concerve the foreign exchange of the currency. The learned S.D.R. has also referred to the Customs Clearance Card which was filled in by the appellant and he had pleaded that at the back of it, it has been clearly mentioned that the tourists carrying more than US $ 1000 have to declare the same in the currency declaration form. The relevant portion is reproduced below : "Tourists carrying currency and travellers exceeding US $ 1000 or its equivalent should fill in the currency form".

The learned SDR requested for the dismissal of the appeal in view of the arguments advanced by him.

7. After hearing both the sides and going through the facts and circumstances and the evidences on record, I hold that there is denial of the principles of natural justice. In such cases, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply, except in so far as they are statutorily made applicable, the fundamental principles of Criminal Jurisprudence and of natural justice do apply. The provisions of Section 106 of the Evidence Act does not apply to proceedings under the Sea Customs Act but the principles underlying it is of universal application. The prayer of the appellant's counsel for recording of statement of witnesses in accordance with the provisions of the Evidence Act was correct in law.

It is a well settled law that the fundamental principles underlying the Evidence Act shorn of technicalities apply on a broad and pragmatic way to proceedings under Section 167(8) of the Customs Act, in view of the Supreme Court's judgment in the case of Collector of Customs v. D.Bhoormull (AIR 1974 SC 859) though not cited by the parties. Since the appellant's counsel wanted the cross-examination of witnesses and the examination of the witnesses has to be in accordance with the principles set out under the Evidence Act. In the interests of justice, I, therefore, remand the case back to the Additional Collector of Customs to look afresh into the matter after giving an opportunity to the appellants to cross examine the witnesses, if he so desires. Since I am remanding the case to the lower authorities, on the ground of legal propriety, I am not going into the merits of the case. For statistical purposes, the appeal is allowed.


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