K Ravichandrabaabu, J. - (1.) This writ petition is filed against the order in original dated 28.01.2016 passed by the respondent imposing penalty of Rs.2 crores on the petitioner under Section 112 (b)(1) of the Customs Act, 1962.
(2.) The case of the petitioner is as follows: The petitioner is doing business of trading in jewellery and bullion. On 29.04.2014, the Director of Revenue Intelligence, Chennai Zonal Unit, conducted search of residential premises of one Thameem Ansari and seized the gold bars allegedly weighing 33.3499 kgs on a reasonable belief that they were smuggled into India without payment of appropriate customs duty. The statement under Section 108 of the Customs Act from the said Thameem Ansari and his associate Rehman were recorded on 29.04.2014, in which, they had allegedly disclosed that the petitioner was one of the persons, to whom, such gold bars were sold on earlier occasions. The said Thameem Ansari and Rehaman had retracted from their original statements. Pursuant to the search and seizure conducted on 29.04.2014, no action was taken either to summon the petitioner or to search his residential business premises. However, on 12.09.2014, the DRI conducted a search and seizure at the petitioner's business place resulting the recovery of 2.830 kilograms of katcha gold and Indian currency notes of Rs.44,37,000/-. They were seized under a mahazar on a reasonable belief that the same was smuggled and the Indian currency seized were sale proceeds of contraband. The petitioner has resciled from his statement and has clearly stated that the same was forced and coerced out of him by exercise of threat and unlawful methods. Two show cause notices were issued, out of which, the present writ petition is concerned with the one dated 25.10.2014. In the said show cause of notice, the proposal is for confiscation of the gold bar seized from Thameem Ansari and for imposing penalties against the said persons and others including the petitioner. It is alleged in the show cause notice that the petitioner has abetted the alleged illegal transaction of dealing in gold bars knowingly that they are smuggled. To the show cause dated 25.10.2014, the petitioner caused a reply on 15.01.2015 refuting the allegations. The statement of Thameem Ansari and Rehman cannot be used against the petitioner for the reason that they are in the nature of statement of co-accused having no evidentiary value, more so, when they have been retracted by the respective makers. The petitioner sought to cross-examine those persons and however, the Adjudicating Authority rejected such request. The petitioner filed a detailed written statement of defence dated 28.12.2015 in the course of hearing of adjudication proceedings. Finally, the Adjudicating Authority passed the impugned order finding the petitioner guilty of the charge of abetment, thereby imposing penalty of Rs.2 crores in terms of Section 112(b) of the Customs Act,1962.
(3.) The respondent filed a counter affidavit wherein it is stated as follows: On 29.04.2014, the Officers of Directorate of Revenue Intelligence, Chennai Zonal Unit, searched the residential premises of one Thameem ansari and recovered 33.3499 kgs of crude gold bars valued at Rs.9.91 crores. They also searched the residence of one Syed Rehman who is the close associate of Thameem Ansari. During the course of investigation, the statement of Thameem Ansari was recorded wherein he has stated that he sold the smuggled gold bars to the petitioner having Shop D Block M/s. Adinath complex and also given his contact number. Likewise, the statement of Syed Rehman was recorded under Section 108 of the Customs Act wherein he had stated that they have mainly sold the smuggled gold bars to the petitioner. Based on those information, the DRI conducted search at the shop premises of the petitioner on 12.09.2014 and seized 2.830 kgs of gold bars valued at Rs.77,35,486/- and unaccounted cash of Rs.44,37,000/-. The petitioner in his statement dated 12.09.2014 admitted his dealing viz., buying and selling of smuggled gold. He agreed that he had received smuggled gold bars around four to five times from Syed Rehman and each time, he received around 8 to 12 kgs of smuggled gold bars. The show cause notices were issued to the petitioner and others. On 30.11.2015, the petitioner was informed about the inability to accede to his request for cross examination. However, he was supplied with the documents requested by him. The petitioner had played a commercial role in dealing with the smuggled gold bars with full knowledge that they are of smuggled in nature. Therefore, for the said acts of omission and commission, he was liable for penal action under Section 112(b)(1) of the Customs Act,1962. The principles of natural justice have been duly followed during the course of adjudication. The Adjudicating Authority thoroughly discussed the material evidences available in the case and also the crucial part played by the petitioner. The two show cause notices issued to the petitioner deals with the different issues and the respective cases are dealt with separately. The present writ petition is not maintainable since the petitioner is at liberty to file an appeal under Section 129(A)(1) of the Customs Act,1962 before CESTAT, Chennai.;