UNION OF INDIA Vs. CHURCHILL ALEMAO

JUDGEMENT

(1.) BY consent, heard forthwith.

(2.) THE petitioner, Union of India through the Collector of Customs and Central Excise, Panaji , Goa , prays for quashing and setting aside the Order dated 4.02.2000 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, refusing to take on record the two affidavits sought to be filed by the Customs Department. The petitioner had sought to file the two affidavits in the proceedings before the CEGAT as, during the course of hearing, learned counsel on behalf of the appellant/respondent herein, had advanced arguments across the Bar (even though it was not specifically pleaded as a ground of appeal) that the silence on the part of the Customs Officer about the existence of the gold biscuit was of vital importance. The Contessa car allegedly carrying smuggled gold was chased by the Customs Officer. The said Officer when faced by an irate mob, allegedly took out one gold biscuit from the dicky of the car and showed it to the public. The contention raised on behalf of the appellant before the Tribunal was that not even one gold biscuit was produced by the Department, though it was alleged that the Contessa car was transporting contraband gold. It was contended on behalf of the appellant that, the fact that the Department could not produce a single gold biscuit goes to show that, in fact, no gold was smuggled in the said car and the question raised is where was the single piece of gold biscuit? It is pointed out by the petitioner herein that since this point was being vigorously argued on behalf of the appellant and since it appeared that the Tribunal was inclined to consider the issue seriously even though it was not a specific ground in the appeal, the petitioner felt it necessary to file the affidavits of the concerned officers who were instrumental in chasing and stopping the car containing the contraband gold, with a view to explain the same. It is pointed out that this submission was never raised at an earlier stage nor in the cross examination of the petitioner's witnesses nor at the adjudication stage. It is pointed out that it was necessary to file the affidavit of Shri Costao Fernandes as he was the sole eye witness to the incident and therefore he has sworn the affidavit dated 31.01.2000 explaining what happened to the gold biscuit which he had taken from the dicky and shown to the public after the car was stopped. As the car was stopped near the house of Mr. Churchill Alemao , ex Chief Minister of Goa , many people rushed at him, and instead of helping to nab the smuggler etc. they were about to attack him and hence he threw back the gold biscuit, closed the dicky and ran away to save himself. It is further contended that Shri Costao Fernandes was the sole eye witness to the whole episode and he alone could clear the controversy by filing an affidavit which would be of great assistance to the Hon'ble Tribunal in deciding the matter. However, as stated earlier, the CEGAT by its impugned order refused to take the said affidavits on record.

(3.) IT is submitted on behalf of the petitioner that by virtue of Rule 23 of CEGAT Procedure Rules and in the interest of justice the Hon'ble Tribunal had ample powers to take the said affidavits on record; further that the objective in filing the two affidavits on behalf of the Customs Department in the said proceedings before the Tribunal was twofold, namely: ( i ) That the Tribunal would have the benefit of evidence to the issues in hand on oath and that the deponent would also be available for cross examination; and (ii) In case the matter is carried further in appeal the appellate forum would have the benefit of perusing the proceedings before the lower Court. Hence there was sufficient ground to grant it.