COLLECTOR OF CUSTOMS PREV Vs. PANCHANAN DUBEY

JUDGEMENT

(1.) THIS appeal by the Collector of Customs (Preventive), West Bengal, Calcutta is directed against the Order-in-Appeal No. Cal-I-C.Ex.-125/87 dated 12-11-87 whereby he had allowed the appeal filed by the present respondent against the Order-in-Original No. 90//Cus./WB/87 dated 12-6-87 passed by the Deputy Collector of Customs (Preventive), W.B. Calcutta. Originally, an earlier Deputy Collector had adjudicated the case against the present respondent confiscating certain seized goods as well as the car in which the goods seized were being transported. Respondent Shri Panchanan Dubey was imposed a penalty of Rs. 800/-which he agitated before the Appellate Collector of Customs, Calcutta. That authority upheld the Order-in-original whereafter a Revision Application was filed challenging the validity of the order of the Appellate Collector. The Government of India under its order No. 1746/84 dated 7-11-84 remanded the case to the Deputy Collector to re-decide the issue after complying with the direction contained in that order. They found that no effort had been taken in the proceedings to prove that the respondent was the person who had accompanied the co-accused whose statement was relied upon in proceeding against him (respondent). The Government of India also found no links established between the goods seized and what were described in the order as incriminating documents. Actually, it was mentioned in the Government of India's order that the order of the Deputy Collector did not even state what the said incriminating documents were.

(2.) After the case was remanded to the Deputy Collector by the Government of India vide their order supra, the case was adjudicated by the Deputy Collector of Customs (Preventive), Calcutta vide his order dated 12-6-87 supra. He imposed a higher penalty of Rs. 5,000/- on the respondent on the ground that the earlier order had been very lenient in imposing a penalty of Rs. 800/- only. Aggrieved with this order, the respondent filed an appeal to the Collector of Customs (Appeals), Calcutta. The Collector (Appeals) allowed the appeal whereupon the present appeal has been preferred by the Collector of Customs (Prev.), West Bengal, Calcutta. It has been urged in this appeal that the Order-in-Appeal passed by the Collector (Appeals) is not valid and legal. In the appeal it is stated that the recovery of certain chits from the premises of the respondent is of great significance because the goods seized were Hydrochloride and the chit of paper recovered bears the name Hydrochloride. This chit of paper is said to be not an ordinary piece of paper since if that were so, there was no need to keep the said chit in a concealed manner in the house. The respondent, it is stated, could not explain the reasons why the said chit containing the names of some medicines including that of Hydrochloride was kept with him, and that too in a very secret and concealed manner. It is, therefore, urged in the appeal under consideration that the respondent had something to do with Hydrochloride and the observation of the Collector (Appeals) in his order that the goods seized and the name of the medicine as shown in the paper chit recovered by the department from the respondent are different is not convincing and is based on incorrect facts and, therefore, not acceptable.

(3.) REPLYING to the arguments of the learned SDR, Shri S.K. Roy, the learned Barrister appearing for the respondent stated that the department's appeal is misconceived. The evidence on the basis of which the respondent has been proceeded against is totally unreliable. He submitted that the direction of the Government of India at the time of remanding the case to the Deputy Collector had not at all been carried out when the case was readjudicated by the Deputy Collector vide his order dated 12-6-1987. In the direction of the Government it was clearly stated that the nature of incriminating documents must be spelt out and the evidence of the co-accused on the basis of which the proceedings were initiated and finalised against the respondent should be clearly linked with the goods seized. The evidence of the co-accused should be corroborated by independent evidence or circumstances to indicate that the evidence of co-accused is correct. He submitted that none of these directions of the Government of India had been followed by the department and the Deputy Collector not only readjudicated the case without complying with the direction of the Government but actually enhanced the penalty amount. On the question of placing reliance on the statement of any person whether he is a co-accused or not he relied upon the decision of the Cegat, S.R.B. reported in 1987 (27) E.L.T. 504 in the case of Seshmul M. Jain v. Collector of Central Excise, Bangalore. He also pointed out that the charge of keeping a chit containing the name of a medicine in a concealed manner is not correct as the said paper was kept in a table drawer which cannot be said to be concealed. Further, the letters in the paper chit were only HC1 which stands for Hydrochloride Acid and there cannot be a link with Thiamine Hydrochloride, which is a product seized by the department. He, therefore, pleaded that the appeal may be dismissed.