{"id":217188,"date":"2007-03-08T00:00:00","date_gmt":"2007-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-customs-vs-vijay-dasharath-patel-on-8-march-2007"},"modified":"2015-10-30T11:35:22","modified_gmt":"2015-10-30T06:05:22","slug":"commissioner-of-customs-vs-vijay-dasharath-patel-on-8-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-customs-vs-vijay-dasharath-patel-on-8-march-2007","title":{"rendered":"Commissioner Of Customs … vs Vijay Dasharath Patel on 8 March, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Customs … vs Vijay Dasharath Patel on 8 March, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  1204 of 2007\n\nPETITIONER:\nCommissioner of Customs (Preventive)\n\nRESPONDENT:\nVijay Dasharath Patel\n\nDATE OF JUDGMENT: 08\/03\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of S.L.P. (C) No. 7947 of 2006)
\nWith
\nCIVIL APPEAL NO. 1206\/2007 @ S.L.P.(C)No.10603 of 2006
\nCIVIL APPEAL NO. 1207\/2007 @ S.L.P.(C)No.11522 of 2006
\nCIVIL APPEAL NO. 1208\/2007 @ S.L.P.(C)No.13000 of 2006
\nCIVIL APPEAL NO. 1209\/2007 @ S.L.P.(C)No.14311 of 2006
\nCIVIL APPEAL NO. 1205\/2007 @ S.L.P.(C)No.14312 of 2006<\/p>\n
S.B. Sinha, J.\n<\/p>\n
 \tLeave granted in S.L.Ps.\n<\/p>\n
\tThese appeals are directed against a judgment and order dated 30th
\nJanuary, 2006 passed by the High Court of Gujarat at Ahmedabad in Tax
\nAppeal Nos. 1923, 1924, 1925, 1930, 1928 and 1929 of 2005 respectively,
\nwhereby and whereunder the appeal preferred by the appellant herein was
\ndismissed holding that no substantial question of law for its consideration
\nhad arisen therein.  The factual matrix obtaining herein is not in dispute.
\nEight persons including the respondents herein were detained for carrying
\n551 gold biscuits of foreign origin, the details whereof are as under :\n<\/p>\n
Sr.No.\n<\/p>\n
Name
\nForeign
\nMark of
\ngold
\nQuan-\n<\/p>\n
tity
\nNature of
\npossession
\nof gold
\nbars\n<\/p>\n
1.
\nSh. Shailesh Ratilal
\nPatel, Proprietor of
\nM\/s. S.K. Jewellers
\nARGOR
\nSUISSE
\n100<\/span>
\nKept in
\n4 plastic
\npackets
\neach of
\n25 bars\n<\/p>\n
2.
\nSh. Vijaybhai
\nDashrathlal Patel,
\nProprietor of M\/s.\n<\/p>\n
Paras Bullion
\n(Respondent herein)
\nCREDIT
\nHERAEUS
\n90<\/span>
\nA small
\ngreen bag
\ncarried by
\nhim\n<\/p>\n
3.
\nSmt. Rasilaben Rathod
\nARGOR
\nHERAEUS
\n95<\/span>
\nUnder her
\nattire tied
\nwith a
\nwaist belt\n<\/p>\n
4.
\nShri Jaswantbhai K.\n<\/p>\n
Patel
\nARGOR
\nHERAEUS
\nPAMP
\nSUISSE
\nJOHNSON
\nMATHEY
\n95<\/span><\/p>\n
09                         <\/span><\/p>\n
09<\/span>
\nHidden in
\nsole of the
\nshoes\n<\/p>\n
5.
\nBhikhabhai T.K. Patel
\nCREDIT
\nSUISSE
\n55<\/span>
\nHidden in
\nsole of the
\nshoes\n<\/p>\n
6.
\nArvindbhai K.K. Patel
\nARGOR
\nHERAEUS
\n55<\/span>
\nHidden in
\nsole of the
\nshoes\n<\/p>\n
7.
\nShri Nandubhai Brijlal
\nSoni
\nUBS
\n51<\/span>
\nHidden in
\nsole of the
\nshoes\n<\/p>\n
8.
\nNathubhai @ Nitinbhai
\nB. Patel
\nCREDIT
\nSUISSE
\n55<\/span>
\nHidden in
\nsole of the
\nshoes<\/p>\n
\tOut of the said 551 of gold biscuits, 200 belonged to Shri Vijaybhai
\nDashrathlal Patel, Proprietor of M\/s. Paras Bullion, whereas 351 belonged to
\nShri Shailesh Ratilal Patel, Proprietor of M\/s. S.K. Jewellers.  Both of them
\nwere arrested.  They made their statements under Section 108 of the
\nCustoms Act, 1962 (‘the Act’, for short).  Shri Vijaybhai Dashrathlal Patel,
\nrespondent herein, allegedly, in his statement disclosed that he had
\npurchased the said 200 gold biscuits from one Ridhi Siddhi Bullion Ltd. who
\nhad produced a delivery challan of ABN AMRO Bank issued in its favour.
\nOther than the said delivery challan, allegedly, he could not produce any
\nother document.  The purported letter of ABN AMRO Bank dated
\n12.11.1999 addressed the Assistant Commissioner of Customs, Ahmedabad
\nis in the following terms :\n<\/p>\n
“We wish to inform you that we had sold 100 Ten Tola
\nGold Bars and 150 Ten Tola Gold Bars to the captioned
\ncompany under our invoice numbers 99\/BAR\/138 dated
\n25th October, 1999 for Rs.55,53,640\/- and 99\/BAR\/139
\ndated 25th October, 1999 for Rs.81,49,025\/-.\n<\/p>\n
The above Ten Tola Gold Bars were out of the
\nconsignment stock of 1000 TT bars imported by us from
\nCredit Suisse First Boston, Zurich under AWB No.085-
\n1490-2753 dated 20th September, 1999.  We had paid the
\napplicable customs duty at the time of clearance of the
\nconsignment on 22nd September, 1999.  We also confirm
\nthat the delivery was effected on our behalf by M\/s.
\nBrinks Arya (India) Pvt. Ltd., Ahmedabad.\n<\/p>\n
This letter has been issued at the request of M\/s.
\nRiddhisiddhi Bullions Ltd.  We hope the above
\ninformation is sufficient and shall be glad to furnish any
\nfurther information you may require.”\n<\/p>\n
\tAccording to him, he had sold 200 gold biscuits to one Devangbhai
\nPatel on 23.10.1999, but had no document to establish the same or that he
\nhad not received any payment therefor.  It was the further statement of the
\nsaid respondent that he had sold 300 gold biscuits to Shailesh Patel, but
\nagain therefor no commercial invoice or delivery challan had been issued.  A
\nfurther statement was made to the effect that out of the said 300 gold
\nbiscuits, 130 having UBS marking were purchased from one K.L. Chokshi
\nand remaining 170 were purchased from different parties, but again therefor
\nno payment was made either in cash or cheque.   Statement of Shailesh Patel
\nwas recorded on 24.10.1999 under Section 108 of the Act when he disclosed
\nthat he had purchased 300 gold bars from Paras Bullion but no bill had been
\nissued therefor nor any payment has been made by him.  On the said date,
\nstatement of Naresh Chokshi was also recorded, wherein, allegedly, he did
\nnot make any statement to the effect that he had sold any gold bar of UBS
\nmark to Paras Bullion.  The second statement of Shailesh Patel was recorded
\non 29.10.1999, wherein he reiterated his earlier statement, stating :\n<\/p>\n
“…On being further questioned, I have to state that the
\ndetails of the receipt\/purchase of the said foreign mark
\ngold biscuits are narrated in the prior statement given by
\nme…”\n<\/p>\n
\tIn his statement recorded on 28.10.1999, Vijay Dasharath Patel had
\nmade a statement that details of purchases of the gold biscuits could be
\nfurnished only upon perusal of his books of accounts.\n<\/p>\n
\tWe need not refer to the other statements made by other persons
\nrecorded by the Customs Officers on that date, being not relevant for the
\npurpose of this case.  We may, however, notice that proceedees retracted
\nfrom their statements on 11.11.1999, alleging that he had the requisite
\ndocuments to support their contentions that gold seized were not smuggled
\nones.\n<\/p>\n
\tHowever, according to Vijay Dasharath Patel, 300 gold bars were sold
\nto M\/s. S.K Jewellers, out of which 201 were purchased from M\/s. K.L.
\nChokshi and the rest were purchased from other jewellers.  According to
\nhim, he did not maintain any stock register.  He further stated that he had
\nsold 200 gold bars to Patel Bullion on 23.10.1999, although he had not
\nreceived any payment from the said vendee.\n<\/p>\n
 A show cause notice was issued upon the respondents on 1.3.2000
\nasking them to show cause as to why the seized gold bars should not be
\nconfiscated and penalty should not be imposed.  Cause having been shown
\nand the matter having been heard, the Commissioner, by his order dated
\n28.2.2001, inter alia, held :\n<\/p>\n
“….substantial number of foreign marked gold bars i.e.
\n361 pieces, were found to have been concealed in the
\nshoes, body parts of the noticees……
\n\t*\t\t*\t\t*\t\t*
\n….In their initial statements recorded before the Customs
\nOfficers on 24.10.99 both Shri Shailesh R. Patel and Shri
\nVijay D Patel admitted that they had no documents for
\nlegal importation….\n<\/p>\n
\t*\t\t*\t\t*\t\t*
\n….Section 123 of the Customs Act, 1962, which casts the
\nburden in respect of “Gold”, on the person from whose
\npossession it is recovered, to prove that it is not
\nsmuggled…\n<\/p>\n
….Statements were not recorded under any duress or
\nmental torture.”\n<\/p>\n
\tAccording to the Commissioner of Customs, the respondents had not
\ndischarged their burden of proof in terms of Section 123 of the Act, in
\nsupport whereof the following findings were recorded :\n<\/p>\n
?\tThe delivery challan issued by ABN AMRO Bank
\nto Riddi Siddi Bullion does not in any way account
\nfor the possession of gold bars by Vijay Dashrath
\nPatel.\n<\/p>\n
?\tShailesh Patel although stated that he had
\npurchased 300 gold bars from Paras Bullion, no
\nbill was issued in his name by the aforesaid firm
\nnor he has made any payment towards purchase of
\n300 foreign marked gold bars.\n<\/p>\n
?\tStatements dated 24.0.1999 were retracted on
\n29.10.1999 but retractions cannot be relied upon.
\n?\tIn the absence of any mention of identity or brand
\nspecifications of the gold bars and also in face of a
\nclear admission that no payments have been made
\nor received and no bills having been issued, it is
\nfully established that all 500 gold bars were not
\nlegally imported or acquired.\n<\/p>\n
?\tThe bills bearing Nos.5877, 5960 and 5936 which
\nhave been produced by Vijay Patel to prove his
\npossession of 200 gold biscuits cannot be relied
\nupon at all.  The gold biscuits seized are not of the
\nsame brand for which the bills have been
\nproduced.\n<\/p>\n
?\tOn 24.10.1999, Vijay Dasharath Patel has stated
\nthat he had purchased 200 pieces of foreign mark
\ngold bars of “CREDIT SUISSEE” mark from M\/s
\nRiddi Siddi Bullion on 23.10.1999.  However,
\nfrom the statement of Shri Dinesh authorised
\nsignatory of M\/s Riddi Siddi Bullion did not
\nmention whether the gold biscuits delivered to Mr.
\nVijay Dasharath Patel were of CREDIT SUISSEE
\nmark.  It was also observed that the alleged Bill
\nNo.294\/GL\/99\/2000 dated 23.10.1999 also does
\nnot show the markings of the brand name of the
\ngold biscuits.\n<\/p>\n
?\tStatement of Ashwinbhai Patel is relied upon to
\nshow that Bill No.11931 was a complete after
\nthought and it had been in fact prepared on
\n24.10.1999.  Ashwinbhai Patel had stated that his
\nmaternal nephew Shri Devang Patel had phoned
\nhim on 24.10.1999 and informed him about the
\nrecovery of the gold biscuits by police and on
\nbeing called by him, he had gone to the residence
\nof Shri Vijay Dasharath Patel on 24.10.1999 and
\nhe had prepared the Bill No.11931.\n<\/p>\n
?\tBoth Vijay Dasharath Patel, Proprietor of Paras
\nBullion and Shailesh Patel admitted that no
\npayment has made for the 300 pieces of foreign
\nmark gold bars covered by Bill No.11931.
\nFurther, the alleged Bill No.294\/GL\/99\/2000
\npurported to be issued by Riddi Siddi Bullion in
\nfavour of Paras Bullion for 350 gold bars does not
\ncontain the details regarding identity\/brand of the
\ngold bars nor the printed or pre-printed Sl.No. of
\nthe Bill.  Also no evidence of payment made by
\nM\/s Paras Bullion to M\/s Riddi Siddi Bullion has
\nbeen produced.\n<\/p>\n
?\tM\/s Riddi Siddi Bullion had relied upon Bill
\nNo.2753 dated 22.10.1999 issued by Anjali Exim
\nPvt. Ltd. in favour of M\/s. Riddi Siddi Bullion for
\n200 gold brars of UBS mark.  However, it is found
\nthat there are no gold biscuits of foreign origin of
\nUBS brand among the 500 gold biscuits and,
\ntherefore, the said bill has no relevance with the
\ngold biscuits under seizure.\n<\/p>\n
?\tThe plea taken by Vijay Dasharath Patel in his
\nstatement dated 11.11.2004 regarding the gold
\nbiscuits in his possession, is an after thought and
\nthe same is not acceptable.  In view of the facts
\nwhich have been initially stated in the statement
\ndated 24.10.1999 and which have been
\ncorroborated by Shailesh Patel in his statement
\ndated 24.10.1999, it is established that there was
\nno document to show the source of 300 gold bars
\nsold by Vijay to Shailesh Patel.\n<\/p>\n
?\tIt was found on close scrutiny of the documents
\nthat bills, delivery challans, vouchers produced by
\nthe notices that none of these is serial numbered or
\npre-serial numbered.  Ad hoc numbers have been
\ngiven to these documents and hence these do not
\ninspire confidence and hence the documents
\nproduced have no credibility.\n<\/p>\n
?\tAlthough it was admitted by Vijay Dasharath Patel
\nand Shailesh Patel that no bills, vouchers, delivery
\nchallans were issued in respect of the sale of 300
\ngold bars.  Entries have been made and Bill
\nNo.11930 and 11931 have been subsequently
\nprepared on 24.10.1999 to legalise the sale.
\n?\t72 entries of purchase and sale have been made in
\nthe stock account of M\/s Paras Bullion after the
\nalleged transactions of bills No.11930 and 11931.
\nIt is humanly impossible that all these entries can
\nbe made within one hour and that the entries in
\nwhich stock register of M\/s Paras Bullion were
\nmade with a view to create the impression of legal
\npurchase and sale of 500 foreign mark gold
\nbiscuits.\n<\/p>\n
?\tNo man of ordinary prudence will transport legally
\nimported foreign mark gold biscuits in the way
\nnotices have been found to be doing.  The facts
\nand circumstances of the recovery of the gold bars
\nby way of concealment in shoes and other body
\nparts of the notice is a positive circumstancial
\nevidence to suggest that the gold was illegally
\nacquired and hence it was transported in a
\nsurreptitious and clandestine manner more often
\nadopted by smugglers.\n<\/p>\n
?\tSatishbhai Patel, who is the accountant of M\/s S.K.
\nJewellers, was also liable as he had abetted
\nShailesh Patel in contravention of the various
\nprovisions of the Customs Act.\n<\/p>\n
?\tAll the carriers of gold bars had not demanded any
\ndocument in support of the illicit import\/
\nacquisition of the gold biscuits received by them
\nfrom Satish Patel and Vijay Dasharath Patel and as
\nsuch have abetted Shailesh Patel and Vijay
\nDasharath Patel in committing contravention of
\nlaw.\n<\/p>\n
?\tAccordingly, it was directed that the 500 gold bars
\nweighing 58.320 Kgs. valued at Rs.2,70,00,000\/-
\nbe confiscated under section 111(D) of the
\nCustoms Act.  Penalties were also imposed on the
\nnotices.”\n<\/p>\n
\tAppeals filed by Respondents before the Tribunal, by reason of an
\norder dated 5.6.2003 were dismissed.\n<\/p>\n
\tApplications for rectification of mistakes were filed alleging that
\nvarious aspects had not been considered in the original order.  Special Civil
\nApplication No. 5468 of 2004 was also filed before the High Court of
\nGujarat at Ahmedabad against the said order of 5.6.2003.\n<\/p>\n
\tThe Tribunal by an order dated 7.1.2004 allowed the applications for
\nrectification of mistakes filed by the respondents.\n<\/p>\n
\tAgainst the said order dated 7.1.2004, the Revenue filed Special Civil
\nApplication No.2640 of 2004.\n<\/p>\n
\tThe High Court set aside the order dated 7.1.2004 passed by the
\nTribunal in the applications for rectification of mistakes and on the same day
\nallowed the said Special Civil Application filed by the respondents, in terms
\nwhereof the order of the Tribunal was set aside and the matter was directed
\nto be considered afresh.\n<\/p>\n
\tThe Tribunal, thereafter, passed an order on 30.9.2005, wherein, inter
\nalia, it was held :\n<\/p>\n
“……This finding of the Commissioner cannot be upheld
\nsince the Appellant has produced documentary evidence
\nof having purchased\/procured the 200 bars from RBL
\nwho in turn have got the same from M\/s. ABL Amro
\nBank, Ahmedabad, the importers of TT bars at
\nAhmedabad, one of the permissible route as per the
\nfindings of the Commissioner.  In any case, the
\nCommissioner and the department do not reject the letter
\ndt.12.11.99 of ABN Amro Bank certifying “CREDIT
\nSUSSE” TT bars to RBL nor does the Commissioner find
\nRBL to have given forged\/fabricated delivery
\nchallan\/invoices to the appellants, ABN Amro Bank or
\nRBL or M\/s. K.L. Chokshi or and M\/s. Amrapali
\nIndustries are not being questioned on their credibility
\nthe TT bars supplied by them cannot be found to be non
\nduty paid or and cleared from an unauthorized port
\nwithout payment of duty and thus liable to confiscation
\nunder Section 111(d) of the Customs Act, 1962…
\n\t*\t\t*\t\t*\t\t*
\n…Therefore, there was no reason to believe that gold
\ncovered by the ABN Amro Bank document was not duty
\npaid…..”\n<\/p>\n
\tDealing with the submissions made on behalf of the proceedees, it
\nwas held :\n<\/p>\n
“….These submissions have force and discharge the
\nburden of the TT bars to be duty paid and not smuggled…
\n\t*\t\t*\t\t*\t\t*
\n…Further, in their statements recorded on 24.10.1999
\nitself, everybody i.e. Dinesh C. Jain of RBL, Sh. Naresh
\nK. Chokshi of M\/s. K.L. Chokshi and Shri Yeshwant A.
\nThakkar of Amrapali Ltd., not only admitted having sold
\nthe gold to the appellants but also provided documentary
\nevidence of having purchased the gold from Banks.  By
\nnot issuing any Show Cause Notice to those persons, we
\nfind that the Revenue agrees and were fully satisfied that
\nthe gold was legally acquired by them and supplied to the
\nappellants.\n<\/p>\n
\t*\t\t*\t\t*\t\t*
\n?\tNandubhai Soni, one of the carriers was let off
\nalthough he was similarly placed as other carriers.
\n?\tTransportation of gold in shoes appears to be a
\nnormal fashion of transporting gold bars, by carriers
\nin the bullion market, irrespective of the fact
\nwhether they have bills or vouchers.\n<\/p>\n
?\tSatishbhai Patel, the Accountant of S.K. Jewellers
\ncannot be said to have abetted Shaileshbhai Patel by
\npreparing ante dated bills.  The proven practice of
\nsales in this market would led us to find nothing
\namiss in invoices being written\/prepared with or
\nwithout brand marks.\n<\/p>\n
?\tABN AMRO Bank letter dated 12.11.99 confirms
\nthat the gold was legally imported.\n<\/p>\n
?\tAlthough the documents do not show that the gold
\nbars were of a particular origin, there is no statutory
\nrequirement which prescribe invoices to describe
\nforeign marks.\n<\/p>\n
?\tAdmitted fact that no payments were made as on the
\ndate of seizure in respect of the seized gold bars.
\nHowever no adverse inference could be drawn.
\n?\tWe do not consider anything to be amiss in
\npayments for the 500 bars not having been effected.
\n?\tWe are arriving at our findings that the entire 551
\ngold TT bars….. To be duty paid gold….
\n?\tDinesh Jain, Naresh Chokshi and Yeshwant Thakkar
\nof Amrapali admitted having sold gold bars to the
\nAppellants.  The Revenue had not issued any show
\ncause to these persons.\n<\/p>\n
?\tConfiscation order and penalty set aside.”\n<\/p>\n
\tAs indicated hereinbefore, on an appeal preferred against the said
\njudgment by the Revenue, the High Court refused to interfere on the premise
\nthat no substantial question of law arise for its consideration.\n<\/p>\n
\tMr. Mohan K. Parasaran, learned Additional Solicitor General
\nappearing for the Union of India would contend that the High Court
\ncommitted a manifest error in opining that no substantial question of law
\narose for its consideration, although, it is evident that the Tribunal had failed
\nto consider the well reasoned judgment of the Commissioner of Customs in
\nits proper perspective.  The learned counsel urged that the High Court failed
\nto notice that the Tribunal had referred to several trade practices in support
\nwhereof the proceedees did not adduce any evidence.  It was submitted that
\nthe Tribunal furthermore failed to consider the question as to whether the
\nproceedees had discharged their burden of proof cast upon them in terms of
\nSection 123 of the Act.\n<\/p>\n
\tMr. Joseph Vella Palli and Mr. Anand Narain Haksar, learned
\nSenior Counsel appearing on behalf of the respondents, on the other
\nhand, would submit that from a bare perusal of the order of the learned
\nTribunal, it would appear that the reasonings of the Commissioner of
\nCustoms had been considered in great details therein and, thus, this Court
\nshould not interfere therewith.  It was urged that no question of law was
\nraised in relation to the specific findings of fact arrived at by the Tribunal
\nand in that view of the matter, having regard to the provisions of Section
\n130 of the Act, the findings of fact being binding on the High Court, no
\nerror has been committed by it in opining that no substantial question of
\nlaw arise for its consideration.\n<\/p>\n
\tSection 130E of the Customs Act, as it stood then, provided for an
\nappeal from an order passed in appeal by the Appellate Tribunal, save and
\nexcept those specifically mentioned therein, only in the event a satisfaction
\nis arrived at by the High Court that the same involves a substantial question
\nof law.\n<\/p>\n
\tBefore the High Court, as also before us, several questions of law
\nhave been raised.  We, however, in view of the order proposed to be passed,
\nneed not deal with all of them in details.\n<\/p>\n
\tWe are not oblivious of the fact that the High Court’s jurisdiction in
\nthis behalf is limited.  What would be substantial question of law, however,
\nwould vary from case to case.\n<\/p>\n
     \tMoreover, although, a finding of fact can be interfered with when it is
\nperverse, but, it is also trite that where the courts below have ignored the
\nweight of preponderating circumstances and allowed the judgment to be
\ninfluenced by inconsequential matters, the High Court would be justified in
\nconsidering the matter and in coming to its own independent conclusion.
\n{See Madan Lal vs. Mst. Gopi & Anr.<\/a> [AIR 1980 SC 1754].}<\/p>\n
\tThe High Court shall also be entitled to opine that a substantial
\nquestion of law arises for its consideration when material and relevant facts
\nhave been ignored and legal principles have not been applied in appreciating
\nthe evidence.  Arriving at a decision, upon taking into consideration
\nirrelevant factors, would also give rise to a substantial question of law.  It
\nmay, however, be different that only on the same set of facts the higher court
\ntakes a different view.  {See Collector of Customs, Bombay vs. Swastic
\nWoollens (P) Ltd. & Ors.<\/a> [(1988) Supp. SCC 796]; and Metroark Ltd. vs.
\nCommissioner of Central Excise, Calcutta<\/a> [(2004) 12 SCC 505].} <\/p>\n
\tEven in a case where evidence is misread, the High Court would have
\npower to interfere.  {See West Bengal Electricity Regulatory Commission
\nvs. CESC Ltd. [(2002) 8 SCC 715]; and also Commissioner of Customs,
\nMumbai vs. Bureau Veritas & Ors.<\/a> [(2005) 3 SCC 265].}<\/p>\n
\tIn M\/s. Dutta Cycle Stores & Ors. vs. Gita Devi Sultania & Ors.<\/a>
\n[(1990) 1 SCC 586], this Court held :\n<\/p>\n
\t“Whether or not rent for the two months in
\nquestion had been duly paid by the defendants is a
\nquestion of fact, and with a finding of such fact, this
\nCourt does not ordinarily interfere in proceedings under
\nArticle 136 of the Constitution, particularly when all the
\ncourts below reached the same conclusion.  But where
\nthe finding of fact is based on no evidence or opposed to
\nthe totality of evidence and contrary to the rational
\nconclusion to which the state of evidence must
\nreasonably lead, then this Court will in the exercise of its
\ndiscretion intervene to prevent miscarriage of justice.”\n<\/p>\n
\tWe have hereinbefore noticed the judgment of Tribunal as also the
\none rendered by the Commissioner of Customs.  The Commissioner of
\nCustoms, inter alia, has gone into the entire materials brought on records by
\nthe parties.  It has taken into consideration a number of circumstances in
\narriving at its findings.  The Tribunal, however, as noticed hereinbefore,
\ninter alia, not only proceeded on the basis that one of the carriers had been
\nlet off but also the purported normal fashion of transport of gold bars for
\nwhich no evidence was brought on records.\n<\/p>\n
\tMr. Joseph Vella Palli would submit that the Tribunal consists not
\nonly of judicial member but also of technical member and in that view of
\nthe matter the Tribunal could take judicial notice of the trade practice
\nprevailing in a particular trade and, thus, no illegality has been committed
\nthereby.  No evidence, however, admittedly, was laid in relation to the
\npurported trade practices. We, therefore, cannot accept the said
\ncontention.  This Court, in Hukma vs. State of Rajasthan<\/a> [AIR 1965
\nSC 476], laid down the law in the following terms :\n<\/p>\n
“…..Learned counsel rightly pointed that while S.178-A
\nhas the result of placing the burden of proof that the gold
\nwas not smuggled on the accused, it is of no assistance to
\nthe prosecution to prove that the accused was carrying
\nthe gold knowingly to evade the prohibition which was
\nfor the time being in force with respect to the import of
\ngold into India.  Once, however, it is found, as it must be
\nfound in this case, in consequence of the provisions of
\nS.178-A (the accused has not tried to discharge the
\nburden that lay on him that the gold was not smuggled)
\nthat he was carrying smuggled gold, the circumstances
\nunder which the gold was discovered, the manner in
\nwhich he was carrying the gold, the considerable quantity
\nof the gold that was being carried and the form in which
\ngold was being carried, namely, blocks and bars in which
\nthe major portion of the gold was found, all these
\ncircumstances establish beyond a shadow of doubt that
\nthe accused was carrying the gold knowingly and with
\nthe intention of evading the prohibition that was in force
\nwith respect to the import of gold into the country.  Mr.
\nKapur tried to argue that when gold is carried by persons,
\nthey often carry it in this manner in a nouli concealed
\nunder trousers.  That may well be so.  Here, however,
\nthere is an additional circumstance that a pointsman of
\nthe Railway, not expected to have so much gold in his
\npossession, was carrying the gold which was, as already
\nmentioned, in six blocks and 22 bars apart from some
\nsmall pieces and one pair of murkees.  The total quantity
\nwas as much as 286 tolas and 11 annas, that is, about
\nthree kilograms.  When all these circumstances are taken
\ntogether, it is not possible to accept learned counsel’s
\nsuggestion that he might be carrying the gold innocently
\nhaving purchased it from somebody.  In our opinion, the
\nHigh Court has rightly held that all the ingredients of the
\noffence under S.167(81) of the Sea Customs Act have
\nbeen established….”\n<\/p>\n
\tThe Tribunal furthermore noticed only the last statements made by the
\nproceedees.  The purported subsequent statements, in the light of their earlier
\nstatements, were not taken into consideration.\n<\/p>\n
\tIt had furthermore not taken into consideration in regard to the
\nconnectivity of the gold bars imported, in respect whereof the custom duty
\nhad been paid and the gold bars seized.\n<\/p>\n
\tWe, therefore, do not accept the contention of Mr. Vella Palli that no
\nquestion of law had  been raised.  It was done by the Revenue in its grounds,
\nstating :\n<\/p>\n
“That the Ld. Tribunal has erred in holding that the
\nfinding of the commissioner is not sustainable because
\nShri Vijay D. Patel, Prop. of M\/s. Paras Bullion has
\nproduced documentary evidence of purchasing 200 bars
\nfrom M\/s. Riddhisidhi Bullion Ltd., which was received
\nby the said Riddhisidhi Bullion Ltd. from ABN Amro
\nBank, Ahmedabad.  It is worthwhile to note that the
\ndocument was not accompanying the consignment at
\ntime of detection by the police and was produced
\nsubsequently at the time of statement of Shri Vijay D.
\nPatel, on 24-10-1999.  The Ld. Tribunal has recorded this
\nfinding by stating reasons that the commissioner and the
\ndepartment has not rejected the letter dated 12.11.1999 of
\nthe ABN Amro Bank certifying “Credit Suisse” TT bars
\nto RBL nor they have alleged that RBL has given
\nfalse\/fabricated delivery challans\/invoices to the noticees.
\nIt is respectfully submitted that the Ld. Tribunal has
\nrecorded the above finding without any material or
\nevidence on record and without even looking into the
\ncontent of the letter dated 12.11.1999 of the ABN Amro
\nBank.  It is submitted that the bank’s letter referred to
\ninvoices dated 25.10.1999 and in such circumstances the
\nquestion of effecting delivery by the bank to the
\nauthorized dealer under delivery challan dated
\n23.10.1999 which is two days prior to the date of invoice
\nis not credit worthy.  It is also against normal trade
\npractice and makes the transaction suspect.  Further, a
\nbare glance at the documents of the bank undoubtedly
\nestablishes that the stock of FM GB shown in the
\ndelivery challan does not establish that the said challan
\nrelates to the gold pieces seized under panchnama dated
\n28\/29.10.1999.  It is submitted that no convincing record\/
\nevidence is led before the competent authority that the
\n200 seized pieces of gold bars are clearly linked\/part
\n(including the same brand name) of the stock shown in
\nthe aforesaid delivery challans and invoices.  Thus, a
\nvital link of sale transaction of the seized gold is not fully
\nestablished.  It is the duty of the person purchasing
\nforeign mark gold bars to see that the correct description
\nof the goods is entered in the respective challans”\n<\/p>\n
\tThe aforementioned letter dated 12.11.1999 issued by the ABN
\nAMRO Bank was the main fulcrum of the reasonings of the Tribunal.  It
\nwas, therefore, in our considered view, required to be considered at some
\ndetails.  Even the error of law committed by the Tribunal in relying upon the
\ntrade practices had expressly been taken by the Revenue, stating :\n<\/p>\n
“The Ld. Tribunal has erroneously held that the proven
\npractice of sales in gold\/bullion market lead to finding
\nthat there is nothing amiss in invoices being
\nwritten\/prepared with or without brand marks,
\nsubsequent to sales and deliveries and thus the penalty as
\narrived on the Shri Satishbhai A. Patel is to be set aside.
\nIt is submitted that Shri Satishbhai A. Patel has also
\nactively concerned himself in abetting the smuggling of
\nthe seized gold as no prudent buyer or seller will buy or
\nsell such a huge quantity of gold without mentioning
\nindividual mark or details.”\n<\/p>\n
\tSimilarly, in regard to the fact of non-payment of consideration had
\nbeen raised by the Revenue in its grounds.\n<\/p>\n
\tIn regard to the purported retracted statements, the Commissioner
\ndealt with the matter elaborately, opining :\n<\/p>\n
“….The retractions are in the form of two separate
\n(almost identical) letters both dated 29.10.99 from Shri
\nShailesh R. Patel and Shri Vijay D. Patel wherein they
\nhave merely stated that their statements were taken
\nforcibly.  They also said that the Police and the Customs
\nOfficers had illegally detained them in “their own
\npremises”.  Similarly, telegrams have been received on
\n29.10.99 from other Noticees alleging wrongful
\nconfinement by the Police & Customs officers……..
\n\t*\t\t*\t\t*\t\t*
\nIt is observed that all these retractions are belated, i.e.
\nafter 6 days, during which the investigations had been
\ncarried out.  The Noticees or their family members could
\nhave sought the intervention of the senior officers of the
\ndepartment during this period i.e. 23.10.99 to 28.10.99 if
\nthere was any truth in their allegations of wrongful
\nconfinement or detention.  This has not been done.
\nMoreover, they have not produced any evidence to
\nsupport that any physical or mental torture was inflicted
\non them.\n<\/p>\n
\tThe CEGAT in their decision in the case of P.
\nPratap Rao Sait versus Collector of Customs, Cochin
\nreported at 1988 (33) ELT 433 (Trib.) had held that:\n<\/p>\n
“The detailed statement before Customs officers prima
\nfacie merits acceptance and by mere retraction, the
\noriginal statement does not lose all evidentiary value.”\n<\/p>\n
Since the retractions are made belatedly and without any
\nsupporting evidences, these have no evidentiary value in
\nthe eyes of law.”\n<\/p>\n
\tIt was furthermore held by the Tribunal that the bills had been
\nprepared subsequently.\n<\/p>\n
\tThe learned Commissioner had opined that their existed serious
\ndiscrepancies in the bills or vouchers.  The Tribunal, in our opinion, should
\nhave dealt with the aforementioned findings of the Commissioner.\n<\/p>\n
\tMr. Vella Palli has strongly relied upon Meenakshi Mills, Madurai
\nvs. The Commissioner of Income Tax, Madras<\/a> [1956 SCR 691], wherein
\nit was held :\n<\/p>\n
“…..On these facts, the Tribunal came to the conclusion
\nthat the contentions of the Department had been fully
\nestablished, namely, that the intermediaries were
\ndummies brought into existence by the appellant for
\nconcealing its profits, that the sales standing in their
\nnames were sham and fictitious, and that the profits
\nostensibly earned by them on those transactions were, in
\nfact, earned by the appellant, and should be added to the
\namounts shown as profits in its accounts.  The point for
\ndecision is whether there arises out of the order of the
\nTribunal any question which can be the subject of
\nreference under section 66(1) of the Act.  Under that
\nsection, it is only a question of law that can be referred
\nfor decision of the court, and it is impossible to argue that
\nthe conclusion of the Tribunal is anything but one of
\nfact.”\n<\/p>\n
\tThere is no dispute as regards the proposition of law but, as noticed
\nhereinbefore, same question of law did arise for consideration of the High
\nCourt.\n<\/p>\n
\tFor the reasons aforementioned, we are of the opinion that the High
\nCourt may not be entirely correct in holding that no substantial question of
\nlaw arise for its consideration.  Ordinarily, although, we have referred the
\nmatters back to the High Court, having regard to the fact that we have
\nourselves examined the findings of the Tribunal and the findings of the
\nCommissioner, we are of the opinion that instead of remitting the matter
\nback, interest of justice would be met if upon setting aside the judgment of
\nthe High Court and Tribunal the matters are remitted to the latter for
\nconsidering them afresh.  The parties shall be entitled to raise their
\nrespective contentions before the Tribunal.  We intend to make it clear that
\nour reference to the findings of the Commissioner as also the Tribunal was
\nmade only for the purpose of considering as to whether any substantial
\nquestion of law arose for consideration before the High Court and for no
\nother purpose.  We may not therefore be understood to arrive at any finding
\nin regard to any question which would arise for the consideration of the
\nTribunal.\n<\/p>\n
\tFor the reasons aforementioned, the appeals are allowed.  The
\nimpugned judgments of the High Court as well as the order of the Tribunal
\nare set aside.  The matter is remitted to the Tribunal for consideration thereof
\nafresh.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Customs … vs Vijay Dasharath Patel on 8 March, 2007 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 1204 of 2007 PETITIONER: Commissioner of Customs (Preventive) RESPONDENT: Vijay Dasharath Patel DATE OF JUDGMENT: 08\/03\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-217188","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Customs ... vs Vijay Dasharath Patel on 8 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-customs-vs-vijay-dasharath-patel-on-8-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Customs ... vs Vijay Dasharath Patel on 8 March, 2007 - 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