Decided on April 16,1991



T.P. Nambiar, Member (J) - (1.) THIS is a Reference Application filed by the above-captioned applicants stating that some points of law had arisen out of the order of the Tribunal in Order No. 218/Cal/1989-218 dated 21-8-1989. There are nine points of law enumerated by the applicants which we will discuss later. The facts of the case in brief are that an information was lodged with the Customs Department at Calcutta that Shri Satyanarayan Kothari along with his wife Smt. Radha Devi Kothari, living at 6/1, Burtola Street, Calcutta-7, dealing in hosiery goods under the name and style of M/s. Golden Industry, vised to visit Bangkok frequently and smuggle precious stones. It was also informed that they had left Calcutta on 4-9-1980 and they would be smuggling precious stones from Bangkok. Pursuant to the above information, on their reaching at Calcutta Airport on 8-9-1980, they were intercepted by the Customs Officers and as a result of search some precious stones, diamonds and synthetic stones were recovered from their baggage as well as their persons. The value of the seized goods recovered from the possession of the two applicants was Rs. 1.86 lakhs. Their voluntary statements were recorded under Section 108 of the Customs Act on the date of seizure, i.e. 8-9-1980. Later on, on 17-9-1980 letters were sent by them stating that their statements were taken under coercion and threat. Show cause notice was also issued to them and they replied to the same. After adjudication proceedings, the learned Additional Collector imposed a penalty of Rs. 1 lakh on Shri Kothari and Rs. 20,000/- on Smt. Kothari. Their appeals to the Board were also dismissed.
(2.) Thereafter, the applicants filed the appeal before this Tribunal. The Tribunal held that the statement given by the applicant, Shri Satyanarayan Kothari is a voluntary statement. The Tribunal also held that the show cause notice is in accordance with law. It was also held that the show cause notice had mentioned all necessary ingredients. It was also held that there was no question of any further enquiry to be conducted after the issue of the show cause notice and the Tribunal held that the decision reached by the Collector, which was upheld by the Board, was not in order. The appeal was accordingly dismissed. The learned Advocates, Shri K.B. Basu, appearing along with Miss. Debjani Sen contended that the order passed by this Tribunal is not in accordance with the legal principles. Shri Basu also contended that there was pre-mature conclusion in the show cause notice giving nothing to the applicants to submit before the authorities. He also contended that in view of failure to conduct necessary enquiries following the seizure of the goods the confiscation is bad. He also contended that the statement of Shri Satyanarayan Kothari dated 8-9- 1990 was not taken by the competent officer. He also contended that the statement was retracted and the same cannot be relied upon and relied on the decision of the Supreme Court reported in AIR 1970 SC 940. He also contended that the diamonds were purchased at Bombay Port and synthetic stones are not covered under Section 123 of the Customs Act, 1962 and the obligation was on the Department to prove the same. He also contended that some points were selected for determination and avoidance of reference to defence case and considering the same in a casual manner is not in accordance with the fundamental principles of the official procedure. He also contended that as far as Smt. Radha Devi Kothari is concerned, she denied knowledge about the offence and the Collector of Customs refused to sanction her prosecution and she was discharged by the learned C.J.M. on the prayer of the Customs Authorities and accordingly, he contended that the questions of law had arisen out of the order of this Tribunal.
(3.) THE learned S.D.R., Shri M.N. Biswas contended that all these questions had not arisen out of the order of this Tribunal and the order of the Tribunal had discussed all the points. He, therefore, contended that the Reference Application may be dismissed.;

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