[Order per : P.S. Bajaj, Member (J)]. - The above captioned appeals have been preferred against the common order-in-appeal dated 9-4-2001 vide which the penalty of Rs. 50,00,000/- had been imposed on the appellant No. 1 and of Rs. 25,00,000/- on the Appellant No. 2.
2. The facts giving rise to these appeals may briefly be stated as under :-
The officers of the DRI received specific information that some antiques were going to be exported by some persons. Resultantly it was gathered that 18 pieces of antiques in 6 packages were being attempted to be exported vide shipping bill No. 416, dated 19-1-93, by falsely declaring as handicraft items of stone. Those six packages on the night of 28/29-1-93 were traced out from one container at ICD, Tughlakabad, New Delhi. The packages were unloaded from container and then examined before panches. On the opening of those packages, 18 stone sculptures of deities which were certified to be articles of antiquity, by Shri Dharamvir Sharma, an expert from Archaeological Survey of India, were recovered and seized under the Customs Act vide panchnama dated 28/29-1-93. Both the present appellants along with one Rameshwar Mittal and Smt. Vijay Kumari were believed to be involved in the attempted export of seized antiquities and as such, were summoned. The appellant Sharad Dugar in his statement recorded on 29-1-93, admitted that he was dealing in the export of antiquities for the last two years to earn more profit and he purchased the antiques from the persons who came to his residence, to sell the same. He admitted that the antiques were stolen and brought from many places like Mathura, Agra, Banaras, Mirzapur and Kashmir, etc., and in April-May, last year, he purchased two antiquities and arranged the same to be sent to Holland, through Rameshwar Mittal by paying Rs. 25,000/- to him, for that job. In respect of the seized antiques, he stated that these were purchased by him from different sources and that he entrusted the same to Rameshwar Mittal for smuggling out of India and agreed to pay a sum of Rs. 1,50,000/-. Similarly, Rameshwar Mittal, in his statement, admitted that seized antiques were entrusted to him by the appellant Sharad Dugar. These antiques were to be sent to Hong Kong. He also stated that he hired the services of Girish Dhawan, appellant, who agreed to charge a sum of Rs. 1,00,000/-. Smt. Vijay Kumari in her statement denied that her son Sharad Dugar was involved in the export of antiques. On completion of investigation, the present appellants as well as Rameshwar Mittal were served with show cause notice dated 27-7-93 vide which penalties under Section 114(i) of the Customs Act were proposed to be imposed on them.
3. The appellants contested the correctness of the show cause notice. They denied their involvement in the export of seized antiques. Shri Sharad Dugar, appellant maintained that his alleged confessional statement was taken under duress and he was tortured also. He even retracted his confessional statement. He denied of having ever exported the seized antiques through Rameshwar Mittal. Similarly, Shri Girish Dhawan, appellant denied his involvement in the export of antiques and maintained that his statement was also taken under duress and threats which was retracted by him on the first available opportunity. Shri Rameshwar Mittal also denied the allegations of the show cause notice and alleged that his confessional statement was obtained under coercion and duress.
4. The Commissioner did not accept the version of the appellants and imposed penalty of the amounts detailed above under Section 114(i) of the Customs Act, through the impugned order. He also imposed penalty on Rameshwar Mittal of Rs. 25,00,000/- but he is not in appeal before us, in these appeals.
5. In Appeal No. C/274/2002-NB, the Counsel has contended that there is reliable evidence on record to prove the involvement of Sharad Dugar, appellant in the attempted export of antiques in question. His name, according to the Counsel, was disclosed only by Rameshwar Mittal whose statement was recorded on 29-1-93 but that statement was retracted by him later on and moreover, he did not come forward to submit himself for cross-examination in order to test the veracity of his statement. Therefore, his statement, Counsel has contended, could not be used against Sharad Dugar, appellant. The Counsel has further contended that the alleged confessional statement of Sharad Dugar himself also could not be taken note of as there is ample evidence on record to prove that the same was obtained under duress and coercion. The Counsel has referred to the medical examination of Sharad Dugar, appellant which was conducted when he was sent to jail, to further corroborate that confessional statement was obtained from him after beating and torturing. Moreover, confessional statement was also retracted by Sharad Dugar, appellant when produced before the Magistrate. Therefore, his alleged confessional statement was not only inadmissible in evidence but also even otherwise could not be relied upon for want of corroboration from any other source. No penalty under Section 114(i), could therefore, be imposed on him.
6. On the other hand, the learned SDR has simply reiterated the correctness of the impugned order and contended that the subsequent retraction of the confessional statement by Sharad Dugar was immaterial and had been rightly ignored.
7. We have heard both the sides and gone through the record.
8. The perusal of the impugned order shows that when the antiques were seized after unloading from the container on the night of 28/29-1-93, appellant Sharad Dugar was not present at the ICD, Tughlakabad. The shipping bill No. 416, dated 19-1-93 vide which six packages containing 18 antiques were attempted to be exported, also did not bear his signatures. That shipping bill was filed on behalf of M/s. Mittal Export, Jama Masjid, Delhi and was presented by Girish Dhawan, appellant, by claiming himself to be an authorised representative of M/s. Air & Sea Masters (CHA). The name of Sharad Dugar was disclosed by Rameshwar Mittal whose statement was recorded on 29-1-93 by the DRI officers. He allegedly stated that seized antiques were supplied to him by Sharad Dugar, appellant, for exporting to Hong Kong and he agreed to charge Rs. 1,50,000/- from him, as out of this, Rs. 1,00,000/- was to be paid by him to Girish Dhawan and remaining were to be retained by him. But he later on retracted his confessional statement. He even did not come forward to submit himself for cross-examination in order to test the veracity of his statement. Therefore, his uncross-examined retracted statement involving Sharad Dugar, appellant in the attempted export of antiques, did not carry any legal value, in the eye of law and could not be made use of against Sharad Dugar, appellant.
9. We are left with the solitary alleged confessional statement of Sharad Dugar, appellant himself, recorded on 29-1-93, wherein he allegedly admitted of having supplied the seized antiques to Rameshwar Mittal, for exporting to Hong Kong, against payment of Rs. 1,50,000/-. But he retracted his confessional statement on the ground that the same was obtained from him after giving severe beating by the officers of the DRI. He was lodged in jail on 29-1-93 by the order of the Magistrate and he sent a letter on 2-2-93 to ACMM and telegram to DRI on 3-2-93, wherein he categorically alleged that he was given beating by the DRI officers and his alleged confessional statement was extracted from him under coercion and threat. His this version also finds corroboration from the other material on record. We find that he was treated for various wounds in jail by the Doctor, as is evident from the medical certificates dated 30-1-93, 5-2-93, 6-2-93 and 16-2-93. He had injuries on his person when he was admitted to jail, as is evident from all these certificates. It is not the case of the department that these injuries were already on his person when he was taken to DRI office on 29-1-93 for investigation and for recording his statement. Therefore, it can be safely and without hesitation inferred that he received injuries at the hands of the DRI officers during the course of his interrogation and recording of his alleged confessional statement.
10. It is also evident from the record that on 29-1-93 after seizure of antiques, DRI officers visited the residential premises of Sharad Dugar, appellant at South Extension which belonged to his mother Smt. Vijay Kumari. On conducting search of that premises, nothing was recovered. No antiques or any incriminating document showing the procurement of antique by him from different sources, was found from his house. He and his mother Vijay Kumari were taken to DRI office at Lodhi Road, where panchnama was also drawn regarding the details of seized antiques in the presence of panch witnesses which was allegedly signed by the panch witnesses and the present appellant Sharad Dugar along with appellant Girish Dhawan and Rameshwar Mittal. That panchnama was allegedly prepared by Mr. Bhattacharya and all the present persons, appellants and Rameshwar Mittal, identified the antiques, as recorded therein. But one of the panch witnesses namely Sant Kumar, has denied of having seen any of the appellants or Rameshwar Mittal in the office of DRI when he signed the panchnama. From his cross-examination, it is evident that he arrived at Lodhi Road Complex of DRI office between 2.30 to 3.00 p.m., whereas the panchnama was prepared between 1 to 3.00 p.m. He has specifically stated that apart from DRI officers and the other panch witness, no other person was shown to him, whereas in the panchnama it had been recorded that the present appellants Sharad Dugar, Girish Dhawan and Rameshwar Mittal, all were identified to him. All these facts and circumstances go long way to throw thick cloud of doubt on the genuine preparation of the panchnama on 29-1-93 at DRI office. Even from the above referred facts and circumstances, it also stands amply proved that the alleged confessional statement was obtained from Sharad Dugar under coercion and after torturing and as such, was inadmissible in evidence.
11. Moreover, there is no material on the record to corroborate the alleged retracted statement of Sharad Dugar, appellant. There is nothing on record to suggest or prove that seized antiques were handed over by him to Rameshwar Mittal, for export. The bald statement of Rameshwar Mittal in this regard cannot be taken as gospel truth as he himself retracted the statement made by him on 29-1-93, vide letter dated 1-2-93. Moreover, his cross-examination was not even allowed by the adjudicating authority to Shrad Dugar, appellant for testing the veracity of his statement. In P.U. Regi v. Superintendent of Central Excise, Madurai - , it has been observed by the Hon’ble Madras High Court that “confessional statement of co-accused alone is not sufficient to prove the case in the absence of the corroboration in material particulars by independent evidence”.
12. No other witness has come forward to depose about the handing over of the antiques in question by Sharad Dugar, appellant to Rameshwar Mittal for export. As observed above, no piece of antique or any other document regarding the acquisition or procurement of antique was recovered from the residential premises of Sharad Dugar, appellant. Even co-appellant Girish Dhawan has nowhere stated that in his presence any deal was struck between Sharad Dugar and Rameshwar Mittal under which former agreed to pay Rs. 1,50,000/- for the export of seized antiques. He has also not deposed that payment of Rs. 1,00,000/- out of the above said agreed amount, was to be paid to him. Therefore, for want of any corroborative evidence, the retracted confessional statement apparently obtained after torturing from Sharad Dugar, appellant, could not be used as substantial evidence against him, for penalising him under Section 114(i) of the Customs Act.
13. The testimony of Shri Bhattacharya, Investigating Officer who prepared the panchnama on 29-1-93 could not be also attached any credence as in his presence no transaction regarding handing over of the antiques of even regarding payment, for export of the same, took place between Sharad Dugar and Rameshwar Mittal. He only prepared the panchnama dated 29-1-93 and resealed the antiques thereafter by putting slips of paper bearing his signatures and of two panch witnesses, as well as all the three noticees i.e., both the present appellants and Rameshwar Mittal. But his own signatures on the paper slips were not found when these were produced in the criminal case, before the Magistrate. Shri Bhattacharya was confronted with this situation but he had no answer or explanation to explain the same. This circumstance also attaches infirmity to the case of the department.
14. In the light of the discussions made above, in our view, the impugned order of the Commissioner of Customs against Sharad Dugar cannot be sustained and the same deserves to be set aside.
15. This takes us to Appeal No. C/276/2001-NB(D) of Girish Dhawan.
16. The learned Counsel has assailed the impugned order of the Commissioner of Customs against Girish Dhawan on the grounds (i) original shipping bill was not produced during the adjudication proceedings, (ii) Girish Dhawan, appellant was not an expert and he only described the goods as handicraft items of stone in the shipping bill, (iii) the seized goods did not fall within the ambit of the definition of ‘antiques’ as given in Section 2 of the Antiquities and Art Treasures Act, 1972, (iv) Girish Dhawan, appellant had no authority to act on behalf of CHA Air & Sea Masters and that his statement could not be used against him being inadmissible in evidence.
17. On the other hand, learned SDR has refuted all these grounds raised by the Counsel and reiterated the correctness of the impugned order.
18. We have gone through the record and the impugned order and we find that none of the grounds putforth by the Counsel is liable to be accepted. Girish Dhawan, appellant himself, in his statement, admitted that shipping bill No. 416, dated 19-1-93 was filed by him on behalf of CHA Air & Sea Masters. He also admitted his role in the attempt to export the impugned 18 pieces of antiques. He fairly conceded that these antiques were shipped by him on behalf of M/s. Mittal Export to M/s. Teddy Thudder, Hong Kong. He further conceded that he deliberately declared the goods as handicraft articles of stone although knowing fully well that the same were antiques and he was even apprised of this fact by Rameshwar Mittal of M/s. Mittal Export. The misdeclaration of the goods, as per his own statement, was made by him as he was to get Rs. 1,00,000/- on completion of export. His this statement is enough to reject all the grounds raised by his Counsel, detailed above, for challenging the impugned order.
19. Moreover, we also find that on the request of the DRI, Director General of Archaeological Survey of India appointed Experts Advisory Committee in order to evaluate the seized goods. That committee submitted its report on 23-2-93 declaring all the goods as antiques after examining the same. That report is conclusive piece of evidence to establish that attempted export items were antiques and nothing else, falling under Section 2 of the Antiquities and Art Treasures Act, 1972.
20. The perusal of the impugned order also shows that initially the description of the goods recorded by this appellant in the shipping bill was wooden chairs but later on over-writing was done and word ‘handicraft’ was substituted. Non-production of the original shipping bill has got no material bearing on the merits of the case, when appellant has Girish Dhawan himself had admitted in his statement, of having filed the shipping bill describing the goods as handicraft items of stone, although knowing fully well that those were antiques. He also cannot be heard saying that he never acted on behalf of M/s. Air and Sea Masters, … when he himself has conceded this fact in his statement. His statement is perfectly admissible in evidence having been recorded under Section 108 of the Customs Act.
21. The case of the department also stands fully corroborated from the evidence of Shri H.C. Jain, Superintendent, Customs, CFS, Patparganj, against the present appellant. He, in his statement, recorded on 5-3-93 and 9-3-93 had deposed that the shipping bill in question was filed through CHA M/s. Air & Sea Masters, by M/s. Mittal Exports and that bill was brought by the appellant Girish Dhawan, on behalf of CHA. He has also deposed that at the time of finalisation of the shipping bill, there was no over-writing or substitution in any entry but it was done later on as the document was handed over to Girish Dhawan, appellant. His evidence also further stands corroborated from that of Amrik Lal, LDC, Customs, CFS, Dinesh Chander, LDC, Customs, CFS, R.K. Anand, Superintendent, Kewal Krishan, Inspector Customs, whose statements were recorded under Section 108 of the Customs Act.
22. In the criminal case, no doubt, Girish Dhawan, appellant along with Sharad Dugar, appellant had been discharged by the magistrate, as is evident from the copy of the order placed on record by the Counsel. But we find that they had not been discharged on merits on the ground that no case was made out against them, but only on the technical ground that they were liable to be prosecuted under the Antiquities and Art Treasures Act, 1972 and not under the Customs Act. Therefore, that order of the criminal court has got no bearing on merit in the present appeal.
23. From the evidence brought on record, we find that case against Girish Dhawan, appellant under Section 114(i) of the Customs Act, stands amply proved. He has been therefore, rightly penalised under this provision of the Customs Act.
24. The learned Counsel has lastly, however, contended for the reduction in the penalty amount by referring to the financial hardship of the appellant Girish Dhawan and the facts and circumstances of the case under which he acted. We find that this request of the Counsel, keeping in view the facts and circumstances of the case, deserves to be allowed. Therefore, the penalty on Girish Dhawan is reduced to Rs. 1,00,000/-. The amount already deposited by him by way of pre-deposit shall be adjusted towards this penalty amount. But for this reduction in the penalty, the impugned order of the Commissioner of Customs against Girish Dhawan is affirmed.
25. In view of the discussions made above, the impugned order of the Commissioner against Sharad Dugar, appellant in Appeal No. C/274/2001-NB, is set aside, while in Appeal No. C/276/2001-NB, except for reduction in penalty, the impugned order against Girish Dhawan, appellant is maintained. Both the appeals stand disposed of accordingly.