PRAKASH THAWANI Vs. CC

JUDGEMENT

(1.) THE appeal arises out of the order of the Commissioner of Customs, New Delhi who has imposed a penalty of Rs. 20 lakhs under Section 112(a) and 112(b) of the Customs Act 1962 on the appellant herein, holding him to be the person who indented high value electronic consumer durables of foreign origin such as TVs, music systems, walkman, cordless telephone, speakers, video cassettes, etc., seized on 25.11.1994 from C -31, Lajpat Nagar III, New Delhi which is found to be in the possession and occupation of one Asabuddin, a driver in the Bangladesh High Commission, procured them from overseas company of which he was the Indian agent, and arranged their clearance, storage and subsequent sale in the local market in contravention of the provisions of Section 111(d), (i), (1) (m) and (o). The goods have been held to be "cover cargo" to conceal misdeclared items and items in excess of : those declared and the goods have been confiscated under a separate adjudication order for violation of the conditions of Notification 3/57 -Cus. dated 8.12.1956 (sic) inasmuch as the imported goods were disposed of by importing diplomats in contravention of the Rules and in contravention of the conditions of the above mentioned Notification as well as for contravention of the provisions of the Foreign Trade (Development and Regulation) Act, 1992.

(2.) WE have heard Shri R.K. Handoo, learned Counsel and Shri Satnam Singh, learned SDR.

(3.) AT the outset, we note that there is no statement of the appellant in which he has admitted involvement in the alleged offence of import of goods in contravention of the Act and Rules. The entire case has been made out on the basis of the statement of one Alok Singh of M/s. Service Bureau (Custom House Agent) recorded on 26.11.1994 and 29.11.1994. Shri Alok Singh has stated that the supporting documents such as duty exemption certificate etc., issued by the Ministry of External Affairs, delivery order and Bills of Entry duly signed by the Embassy's diplomat in respect of Bills of Entry at SI. No. 1 to 8 (under which the offending goods had been cleared) were handed over to him for customs clearance by Shri Prakash Thawani and that the cargo cleared vide Bill of Entry at SI. No. 1 to 6,8 and 10 was despatched to C/31, Lajpat Nagar III, New Delhi, as per Prakash Thawani's directions. The appellant sought cross -examination of Alok Singh (who is the only person who has deposed against him) in his Counsel's letters dated 26.8.1995 and 24.5.1996 and this request has been noted by the adjudicating authority in para 52 (iv) of the impugned order; however, in para 54 of the adjudication order, the Commissioner has stated that the cross -examination of persons who had deposed against the appellant was not asked by his counsel. Therefore, the statement of Alok Singh which is the only link between the appellant and the confiscated goods remains untested by cross -examination.