ORDER
N.K. Bajpai, Member (T)
1. This appeal is directed against the order of Collector of Customs & Central Excise, Chandigarh imposing a penalty of Rupees one lakh under Section 74 of the Gold (Control) Act, 1968 on the ground that he smuggled gold of foreign origin into India and dealt with it. The confiscation of the gold valued at Rs. 15,94,505/- has been ordered by the Collector under Section lll(d) of the Customs Act by the same adjudication order under which penalty has been imposed on the appellant.
2. The appellant has assailed the impugned order on the ground that it has been passed without affording to the appellant an effective and real opportunity of defending his case because the adjudicating authority was not justified in denying the request of the appellant’s counsel to adjourn the date of personal hearing fixed for 16-5-1988. It is also stated that the counsel had sufficient cause for asking for adjournment and, in any case, this was the first adjournment prayed for by the appellant’s counsel. Thus, the refusal to adjourn the hearing resulted in violation of the principles of natural justice and the order should be set aside on this score alone.
3. The second ground of appeal is Collector’s refusal to accede to the appellant’s request for cross-examination of the seizing officers as also the witness relied upon by the department as contained in the counsel’s letter dated 16-5-1988. A grievance has also been made of the point that the Collector did not communicate his decision to deny the cross-examination of witnesses etc., as requested and proceeded to pass the order without further adverting to the appellants’ counsel’s request.
4. The third ground of appeal is that Collector has relied upon the statement of the appellant himself which was retracted as having been extracted from him under duress and pressure as soon as the appellant was released on bail. The order has also been assailed on the ground that it is based on the retracted self-incriminating statements of the appellant and there is no other independent material on the record to prove the guilt of the appellant.
5. It has also been submitted that the penalty imposed is heavy and is not warranted nor justified in the facts and circumstances of the case.
6. During the hearing of the appeal, Smt. Archana Wadhwa, the learned counsel for the appellant submitted copies of
(a) letter dated 18-9-1987 to the Assistant Director, Revenue Intelligence, Amritsar
(b) letter dated 15-1-1988 from Shri M.M. Sharma, Advocate for the appellant to the adjudicating authority
(c) letter dated 16-5-1988 from Shri A.K. Bedi, Advocate for the appellant filed personally by Smt. Archana Wadhwa who appeared before the Collector and sought adjournment of the hearing.
7. While reiterating the grounds of appeal, Smt. Wadhwa submitted that the failure to supply copies of statements and documents relied upon in the Show Cause Notice, the failure to permit cross-examination of witnesses and to grant adjournment of hearing on 16-5-1988 as requested for the Collector personally had resulted in violation of the principles of natural justice and the impugned order should be set aside on this ground alone. Moreover, the order could not be sustained as it was based on the retracted statement of the appellant himself without any corroboration. She cited the following cases in support of the plea that she was entitled to adjournment :-
(a) Swadeshi Polytcx Ltd. v. CCE [1989 (43) E.L.T. 719 (Trib.)
(b) City Drinks Ltd. v. CCE [1990 (48) E.L.T. 566 (Trib.)
(c) Chinta Beedi Co. v. CCE (1989 (39) E.L.T. 714 (Trib.)
8. Shri G. Bhushan, the learned SDR, submitted that cross-examination of witnesses was not mandatory in adjudication proceedings and all that the appellant was entitled was to copies of statements and documents relied upon in the show cause notice. He contested the claim of Smt. Wadhwa that copies had not been supplied and produced the adjudication file of the Collector and invited attention to the office copy of the letter C. No. VIII(HQ)10/Cus/ AAR/22/87/920 dated 4-2-1988 addressed to Shri M.M. Sharma, Advocate along with which photostat copies of relied upon documents had been forwarded to him in a registered cover. On the question of adjournment, Shri Bhushan submitted that two requests for adjournment of the hearings fixed for 15-3-1988 and 19-4-1988 by the appellant’s counsel had been accepted by the Collector and this fact is recorded in para 10 of the order. It was in these circumstances that the third request for adjournment was not considered justified and this fact is also mentioned in the order. As for the case law on adjournments cited by Smt. Wadhwa, the learned SDR submitted that a request for adjournment had to be considered in the light of the facts of each case. Shri Bhushan submitted that considering that two adjournments had already been granted to the appellants’ counsel, the third adjournment appeared to be unjustified even if it was made by the new counsel. He submitted that the ground on which the third adjournment was sought was vague and the request had to be considered in the light of the incorrect submission that copies of relied upon documents had not been supplied because of which the appellants had not been able to furnish a comprehensive reply. Since copies of documents had been supplied over three months ago, the Collector has correctly decided that there was little justification for yet another adjournment. In these circumstances, the hearing could not have been prolonged indefinitely because opportunities had been provided on three occasions and this was full compliance with the requirement of law.
9. Replying, Smt. Wadhwa conceded that in view of the information given by the learned SDR, it appeared that copies of relied upon documents had been supplied and did not therefore, press the plea on that ground. On a question from the Bench that the letter dated 15-1-1988 of the appellant’s previous counsel and the subsequent letter dated 16-5-1988 showed that the request for cross-examination of witnesses had not specified their names, she replied that the request was for examination of official and non-official witnesses. She submitted that it was the practice in such cases to start with the seizing officer and include the panch witnesses and others.
10. We have carefully considered the arguments of both sides and have perused the case records including the adjudication file produced by the learned SDR. It is seen that the show cause notice was issued on 4 December, 1987 and the first reply of the appellant is dated 15-1-1988 asking for copies of relied upon documents which were supplied on 4-2-1988. The first hearing was fixed on 15-3-1988. This was adjourned to 19-4-1988 at the request of the appellant’s counsel. A second request for adjournment was also allowed and the next date was fixed on 16-5-1988 by which time the appellant had changed his counsel. Accordingly, a request for further adjournment was made on the ground that
(a) because of recent appointment and on account of the client not being able to visit the counsel because of disturbed conditions and also curfew imposed at Amritsar, the counsel had not been able to receive complete instructions from the appellants for their proper defence;
(b) that even otherwise their clients had not been able to file a comprehensive reply to the notice on account of non-receipt of relied upon documents as requested for by the previous counsel;
(c) that as already indicated in their previous replies, their clients wish to cross-examine the official and non-official witnesses in their defence before final adjudication of the case.
11. A careful examination of this request would show that though the counsel had apparently looked into the papers so as to reiterate the same requests which were made by the previous counsel, she had not carefully gone through the copies of relied upon documents sent by the department on 4-2-1988. If the new counsel had devoted the attention which the matter deserved, there was no reason why she should have reiterated the request for adjournment on the ground of non-supply of documents which, in fact, had been supplied. The reason for adjournment in these circumstances would appear not to be due to non-supply of documents but because of the inability of the counsel to carefully go through the appeal papers. Although the adjudicating authority has merely recorded that the request for further adjournment is not justified, it has become necessary for us to go into the whole question at length in view of this being made a ground of appeal and one which was vehemently argued before us.
12. There is yet another circumstance which shows that the counsel had not bestowed the requisite attention to the appeal. While making a request for cross-examination of the official and non-official witnesses, no effort was made to see which witnesses are really required in the defence of the appellant. If this had been done, there was no reason why the counsel would not have given the names of specific witnesses and the reasons why their cross-examination was necessary. It was understandable that when the previous counsel sent the reply dated 15-1-1988, he was not able to specify the names of witnesses because by that time he had not been supplied with copies of documents relied upon. But, the only improvement which the second counsel made even after copies of documents had been supplied was to amplify the word ‘witness’ into ‘official’ and ‘non-official’ witnesses. No effort was made to find out the need, the relevance and the importance of witnesses, as if it was a routine exercise to be undertaken. This is also clear from what the counsel stated at the hearing, in reply to a question, to be the practice to produce the seizing officer, the panch witnesses and other witnesses. It is well-settled that all that the law requires by way of compliance of principles of natural justice in adjudication proceedings is that the grounds on which it is proposed to confiscate the goods or impose penalty should be furnished in a notice and an opportunity given of making a representation in writing as well as further opportunity given of being heard in the matter. These questions have been agitated on numerous occasions before the High Courts and the Supreme Court and the position has best been stated in the judgment of the Supreme Court in the case of K.L. Tripathi v. State Bank of India and Ors. (AIR 1984 SC 273):-
“41. It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle, has to be judged in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula, In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed.”
13. A similar observation appears in the judgment of the Supreme Court in the case of State of Kerala v. K.T. Shaduli (AIR 1977 SC 1627) :-
“This rule which requires an opportunity to be heard to be given to a person likely to be affected by a decision is also, like the genus of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the inquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision. It is therefore, not possible to say that in every case the rule of audi altcram pattern requires that a particular specified procedure to be followed. It may be that in a given case the rule of audi alteram -partem may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not.”
14. The question whether it was necessary to permit cross-examination of witnesses would have arisen if the learned counsel of the appellant had, after receipt of copies of relied upon documents, furnished the names of witnesses whom he wished to cross-examine giving also the justification for doing so to enable the adjudicating authority to consider the request. In the absence of any names being specified, where was the question of the adjudicating authority going into the matter and recording his finding?
15. If, therefore, the plea of the appellant that there has been a violation of the principles of natural justice is examined in the light of what has been stated above, it would appear that the request for cross-examination of witnesses without specifying their names and their relevance was included in the letter with a view to delaying the proceedings and was rightly rejected by the Collector.
16. Coming to the merits of the appeal, the ground advanced is that the order imposing penalty is solely based on the retracted statement of the appellant himself and is not corroborated by any independent evidence. It appears that foreign marked gold was recovered from the secret cavity of the scooter in the presence of the appellant and one more person – Smt. Harjit Kaur. In his statement, the appellant himself had furnished details of how and from where he had brought the gold and how he had transported it by concealing it in a secret cavity in a tractor. It was in pursuance of the appellant’s own statement that the tractor also was located at the address disclosed by him and this too led to the discovery of cavity in the tractor. With so much corroboration being available in the form of recoveries of gold from the cavity of the scooter and subsequent find of the tractor having a cavity, can it be said that the statement of the appellant, even if retracted subsequently, was not truthfully made? It is significant that in these circumstances, even the Indian Evidence Act, 1872, provides in Section 27 that so much of the statement of an accused before a police officer which leads to the fact thereby discovered may be proved in evidence against that person. We have referred to the provisions of the Evidence Act only to show the principle which is universally accepted in these matters. In this view of the matter, we do not consider any merit in the argument of the appellant. The appeal is therefore, liable to be dismissed.
17. As for the quantum of penalty, we consider that, keeping all the facts in mind, a lower amount of penalty would meet the ends of justice. We observe that a penalty of Rupees one lakh has been imposed on the appellant under Section 112 of Customs Act. We, therefore, reduce the penalty from Rupees one lakh to Rs. 50,000/- (Rupees Fifty Thousand only). Subject to this modification, the appeal is otherwise dismissed.