1. This application under Section 130(1) of the Customs Act is by Shri Panna Lal, the appellant in Customs Appeal No. 1557/81 (NRB).
2. On 10-12-1977 one Mr. Giovanni Marchetti, a Crew Member of Alitalia flight from Bangkok was detained by the Customs authorities as he was found in possession of various articles including 8.5 Kgs. of gold and 196 wrist watches which he had failed to declare and it was seized under Section 110 of the Customs Act. A statement was recorded from him. In pursuance thereof the applicant Shri Panna Lal as also one Shri Lalji Kapoor were traced and statements were recorded from them also.
On the basis of the said statements and further materials gathered a show cause notice dated 10-3-1978 was issued by the Additional Collector of Customs, Delhi Airport. Replies were sent by these parties and adjudication was held by the Additional Collector in pursuance of which he passed an order dated 19-9-1978 where-under he inter aha imposed penalties of Rs. 50.000/- each on Shri Panna lal and Shri Lalji Kapoor under Section 112 of the Customs Act. On appeal preferred by these two persons to the Central Board of Excise and Customs, the Central Board by order dated 18-8-1980 confirmed the order of the Additional Collector and dismissed the appeals. Subsequent thereto Shri Lalji Kapoor had died. Revision petitions were preferred by his widow Smt. Nisha Kapoor as well as Shri Panna Lal to the Government of India against the order of the Central Board. On transfer of the said revision petitions they were heard as appeals before this Tribunal, the two appeals being heard together as they raised common questions of fact and law. By order dated 20-11-1984 the two appeals were dismissed.
This application has thereafter been filed for reference to the Hon'ble High Court at Delhi of various questions mentioned in the application as questions of law arising out of the order dated 20-11-1984.
3. We have heard Shri Harbans Singh, Advocate, for the applicant and Shri Rakesh Bhatia, Senior Departmental Representative, for the respondent Collector.
4. As many as 21 questions have been mentioned in the petition. Several of them have been couched as if raising merely academic questions without reference to the facts of the appeal. Therefore at the time arguments were heard Shri Harbans Singh submitted arguments with reference to particular questions of law as arising out of order of the Tribunal and in connection therewith referred to the questions relevant thereto out of the list of 21 questions mentioned in the petition. In that process he made reference to questions 1,2,3, 5, 6, 10, 11, 18, 19 and 20 only of the various questions mentioned in the petition and did not refer to the other questions. We shall now therefore discuss the submissions of both sides with reference to the said questions.
5. Shri Harbans Singh first referred to the question as to the contraband goods that were the subject matter of adjudication and were dealt with under the order of the Collector and the Board. He had contended during the hearing of the appeal that in paragraph 6 of the show cause notice it was only the goods seized from Shri Marchetty that had been referred to as liable for confiscation under Section 111(d), (1) and (m) of the Customs Act, 1962 as also the other goods in which the seized goods had been concealed and therefore the Collector erred in recording his finding against the applicant in the matter of complicity in the importation of the goods meaning not merely these seized goods but other goods which Shri Marchetty is said to have illegally imported on his earlier trips. This matter had been discussed in paragraph 4 of the judgment of this Tribunal. It had been pointed that paragraph 6 of the show cause notice referred to "contraband goods aforementioned" and therefore it is not merely the goods that were seized from Shri Marchetty on 10-12-1977 that were the subject matter during adjudication but also the goods earlier smuggled. In this connection Shri Harbans Singh referred to question No. 18 in the petition. The question suggested is as to what would amount to "contraband goods as aforementioned" in paragraph 6 of the show cause notice. This question would therefore be a question of fact only and would not be a question of law, since the answer would depend upon merely the reading of the show cause notice and reference to the goods therein. In the circumstances we are satisfied that no question of law as suggested by the application could arise on this question.
6. Then Shri Harbans Singh referred to the fact that under the order of the Collector the finding recorded against the applicant and Shri Kapoor was only in respect of contravention of Section 112(b) of the Customs Act and not Section 112(a) of the Customs Act but that the order of the Board reads as if the finding according to the Board is under Section 112(a) against the applicant and not under Section 112(b). He submits that in the absence of any proceedings in the nature of cross objections the finding of the Board under Section 112(a) was improper and the confirmation thereof by this Tribunal would give rise to a question of law.
7. No doubt in the order of the Board the finding is "there appears to be reasonably conclusive case against the appellants of being concerned with the unauthorised importation with a view to carry on further transactions". This would to an extent support Shri Harbans Singh's comment that the Board appear to be recording a finding under Section 112(a) and not 112(b). But it appears that the Board had used loose expressions only but was confirming the finding under Section 112(b) only since after the above quoted words the order of the Board reads "and accordingly the Collector has correctly penalised them". In any event it may be seen that though a ground had been raised in the revision petition on this matter Shri Harbans Singh did not pursue the matter while arguing the appeal but stated, as observed in the order of the Tribunal, "Shri Harbans Singh did not advance any such argument during the hearing and stated that he would not press that ground. It is therefore unnecessary to consider the ground." It was in these circumstances that the matter was not further gone into by this Tribunal under its order. Therefore question No. 19 as mentioned by Shri Harbans Singh as relevant to this dispute would not be a question of law to be referred to the High Court.
8. Shri Harbans Singh then referred to the discussion and the conclusion in paragraph 12 of the judgment of this Tribunal, especially to the last sentence therein, and contended that a question of law as mentioned in question No. 20 in the application would arise in this connection. The question suggested reads as follows : "The goods in this case were seized from the possession of Mr.
Marchetty at Delhi Airport. The applicant was not present there. No agreement appears to be established between the applicant and Mr.
Marchetty. No actusria was done by the applicant. Would it still be legally valid to hold that the applicant was concerned in the importation of the seized good ?" The discussion in paragraph 12 of the Tribunal's order related to the finding of the lower authorities that the appellants had facilitated the importation of the goods seized. The Tribunal had held that taking into consideration the various pieces of evidence as mentioned in the said paragraph 12 the conclusion regarding the complicity of the applicant by way of facilitating the importation of the seized goods is established though there was no direct evidence to their overt participation in the actual importation. Therefore this is not a case where a conclusion on a question of fact had been drawn without any evidence or in a perverse manner. Hence the conclusion having been drawn on appreciation of the factual evidence the said conclusion would not give rise to any question of law but only to a question of fact whether the conclusion had been drawn properly or not. We therefore hold that no question of law as mentioned in Question No. 20 in the application would arise for reference to the Hon'ble High Court.
9. Shri Harbans Singh then referred to the findings of this Tribunal as to whether the applicant had retracted the statement made by him to the Customs Officers. According to him the conclusion of this Tribunal that there had been no such retraction was not proper and the said wrong conclusion would give rise to a question of law. He has referred to questions 1 and 2 in this connection.
10. This question as to whether there had been any retraction or not had been considered in paragraph 6 of the judgment of this Tribunal. It had been pointed out that the retraction by them under their letter dated 14-12-1977 specifically referred to statements recorded from them by the Enforcement Authorities on 12-12-1977 and 13-12-1977.
Significantly the statement to the Preventive Officers had been made on 10-12-1977 and 11-12-1977. Taking into consideration the fact that the appellants had purported to have sent a letter in writing containing a specific retraction but confined the said plea with reference to the statements recorded on 12-12-1977 and 13-12-1977 only, the Tribunal had concluded that there had been no retraction of the statements recorded on 10-12-1977 or 11-12-1977. This conclusion is again a question of fact and would not give rise to a question of law since the said conclusion was based on a letter written by the applicant himself in specific terms. Therefore questions 1 and 2 are also not questions of law to be referred to the Hon'ble High Court.
11. Shri Harbans Singh then referred to the reply to the show cause notice and contended that the same would amount to retraction and the conclusion of the Tribunal that there had been no retraction at ail was therefore improper and the said conclusion would give rise to the question of law as mentioned in question No. 3 in the petition. No argument as to the retraction under the reply to the show cause notice had been advanced during the hearing of the appeal itself. Further the weight to be attached to any such retraction which comes in a reply sent nearly 8 or 9 months after the recording of the statements would be practically nil. Therefore no question of law can be said to arise with reference to the alleged retraction under the reply to the show cause notice.
12. Shri Harbans Singh then referred to the correctness of the conclusion regarding the guilt of the petitioner as proved by the corroboration furnished by the statements of Shri Marchetty. His submission was that Shri Marchetty being in the position of a co-accused his statement would not provide corroboration and in any event would not suffice as corroboration. But it should be noted that Shri Marchetty had in fact been subjected to cross examination also during the course of adjudication proceedings. Therefore the usual rules in criminal trials as to the statement of co-accused being a weak link or not sufficient to provide corroboration of the evidence against the other co-accused would not apply. In departmental adjudication such statements of persons facing enquiry jointly would be legally sufficient as corroboration. Hence no question of law as mentioned in question 10 and 11 of the application would arise for reference to the Hon'ble High Court.
13. Shri Harbans Singh then referred to the questions 5 and 6 and contended that even apart from the retraction the very contents of the statements alleged to have been made by the petitioner would not suffice to make out a case against him and that there are circumstances to show that the alleged statements could not have been voluntarily made. But this would again raise a question of fact only as to the sufficiency of the circumstances to make out the unvoluntary nature of the statement recorded. There is no question of law involved on this matter also.
14. As earlier mentioned though the application refers to 21 questions, Shri Harbans Singh confined his submissions to the questions mentioned above only and did not refer to the other questions during his arguments. Since we have already held that the questions with reference to which Shri Harbans Singh made submissions are not questions of law to be referred to the Hon'ble High Court, we reject this application.