2021 Supreme(Mad) 776

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, R.N. MANJULA, JJ.
Lieutenant Colonel Ganesan S. (Retd.), Chennai – Appellant
Versus
The Commissioner of Customs, Chennai VII Commissionerate Air Cargo, Chennai – Respondent
C.M.A. No. 929 of 2020 & C.M.P. No. 5782 of 2020
Decided On : 18-03-2021

Point of law: Section 112(a) of the Act is applicable to a person, who in relation to any goods, does or omits to do any action, which act or omission would render such goods liable for confiscation under Section 111 or abets the doing or omission of such an act. It is submitted that even as per the evidence relied on in the show cause notice, the appellant was neither responsible, nor actually did any act or omitted to do any act mentioned in Section 111 of the Act. In such circumstances, the provision “abets the doing” would also not be applicable to the appellant and therefore, the penalty imposed under Section 112(a) is not sustainable.

Headnote:

Customs Act, 1962 – Sections 111, 112, 124, 130, 138C – Imposition of penalty – Threat and coercion – Appeal filed under Section 130 of the Customs Act, 1962 is directed against the order, passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Chennai in Final Order – Appellant is an individual and has established a Security Service Agency under the name and style M/s.Ganesan Security Agency and has been empanelled in the Ministry of Defence, Directorate General of Resettlement, as the appellant is a retired Lieutenant Colonel. – Whether the first respondent authority and the Tribunal is correct in holding that the charges of Section 112(a) of Customs Act, 1962 is made out in the facts and circumstances of the case against the appellant, warranting imposition of penalty – Whether the Hon'ble Tribunal had erred in relying upon retracted statements of the co-accused particularly when at the time of remand the Hon'ble Magistrate had specifically noted that the statements were recorded under threat and coercion – Whether the Hon'ble Tribunal had erred in relying upon retracted statements of the co-accused without independent corroboration in view of the decision of this Hon'ble Court in D.V.Kishore vs. CC (Seaports-Imports), Chennai reported in 2017 (350) ELT 527 (Mad) – Whether the Hon'ble Tribunal has traversed beyond the show cause notice by relying upon certain call records which were not relied upon in the show cause notice issued to the appellant under Section 124 of the Customs Act, 1962 – Whether the Hon'ble Tribunal had erred in relying upon the alleged call records without the actual subject matter of the conversation in view of the decisions quoted by the appellant, namely Shafeek P.K. vs. CC, Cochin reported in 2015 (325) ELT 199 (Tri- Bang) and Anil Gadodia vs. CC, Mundra reported in 2016 (343) ELT 983 (Tri-Ahmd) – Whether the Hon'ble Tribunal had erred in relying upon the call records given by the mobile service provider without the mandatory certificate that is required to be issued under Section 138C of the Customs Act, 1962

Finding of court: Counsel for the appellant would argue that this was not part of the Order-in-Original. – However, we find this appears to be incorrect because the Order-in-Original more particularly, from page no.50 onwards discusses about the call details and there is a pictorial matrix of the mobile phone contacts of the persons involved and in the pictorial matrix, the appellant was referred as Security Guard and there is elaborate discussion on the call details. – Tribunal after taking note of the facts recorded by the Adjudicating Authority has held that the appellant cannot wash off his responsibility with a total denial that he did not know Mr.Khaja at all and there was only a wrong call for about six seconds. – Thus, after analysis of the entire factual position, the Tribunal concluded that the Revenue has made out a case by linking chain of events, phone calls etc., towards the scheme planned well in advance for executing anti-national activity by defrauding the Revenue, which was succinctly brought on record by the Adjudicating Authority in the form of unchallenged statements and the call records and therefore, holds that there is no reason to interfere with the orders passed by the lower authorities. – It can hardly be said that the order is a non-speaking order. – Tribunal has re-appreciated the evidence and agreed with the finding of the Adjudicating Authority, which was confirmed by the first appellate authority. – Court do not agree with the submissions made on behalf of the appellant that the order is a perfunctory order and it did not consider the evidence placed before it. – Therefore, the decisions relied on by the learned counsel would not render any assistance to the case of the appellant. – Though before the Judicial Magistrate the co-accused have stated that statement has been obtained under coercion, there was no retraction at any point of time. – Therefore, the Adjudicating Authority was right in holding that the statements are unretracted statements. – This finding was considered for its correctness by the Tribunal and after examining the facts, it found that the statements remained unretracted and if that is so, then there is no bar for the authority to rely on and refer to the said statement. – Court is of the clear view that this appeal does not raise any question of law, much less substantial question of law for consideration, as the entire matter is fully on facts and the order passed by the Tribunal would not require any interference in exercise of the power under Section 130G of the Customs Act.

Result: Appeal Dismissed