Miscellaneous Appeal No. 41 of 2006 Against Order no.A-573/KOL/2005 dated 12.8.2005, passed by learned Customs, Excise, and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata,in Appeal No.CSM 167/2003. ****** Commissioner of Customs, Govt. of India, Patna, 5th Floor, C R Building, Bir Chand Patel Path, PS Kotwali, Town and District – Patna...Applicant/Appellant Versus 1(i) Vijay Kumar S/o Late Baji Rao Bombaywala, aged 30 years (ii) Santosh Kumar s/o Late Baji Rao Bombaywala, aged 32 years Both residents of Sonapatti, PS Motihari, District East Champaran ........... Respondents/Respondent/s with Miscellaneous Appeal No.43 of 2006 Against Order no.A-572/KOL/2005 dated 12.8.2005, passed by learned Customs, Excise, and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata,in Appeal No.CSM 164/PAT/CUS/appeal/2003. ****** Commissioner of Custom , Govt of India, Patna, 5th Floor, C R Building, Bir Chand Patel Path, P S Kotwali, town and distirct Patna...Respondent/Appellant Versus Abha Rao Bombaywala S/o Shri Bhagwan Rao, Sonarpatty, PS Motihari, in the district of East Champaran....... Appellant/Respondent with Miscellaneous Appeal No. 45 of 2006 Against Order no.A-570-573/KOL/2005 dated 12.8.2005, passed by learned Customs, Excise, and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata,in Appeal No.CSM 160- 161/PAT/CUS/appeal/2003. ******* Commissioner of Custom , Govt of India, Patna, 5th Floor, C R Building, Bir Chand Patel Path, P S Kotwali, town and distirct Patna...Respondent/Appellant Versus Prabhu Prasad son of Brij Bihari Prasad, resident of Sonarpatti, Motihari, District East Champaran ...Appellant-/Respondent with Miscellaneous Appeal No. 46 of 2006 Against Order no.A-570/KOL/2005 dated 12.8.2005, passed by learned Customs, Excise, and Service Tax 2 Appellate Tribunal, East Zonal Bench, Kolkata,in Appeal No.159/PAT/CUS/appeal/2003. ******* Commissioner of Custom, Govt of India, Patna, 5th Floor, C R Building, Bir Chand Patel Path, P S Kotwali, town and distirct Patna...Respondent/Appellant Versus Braj Bihari Prasad Son of Late Harihar Sah, Sonarpatti resident of Motihari, District East Champaran ... Appellant –Respondent ********** For the Appellants : MRS.NIVEDITA NIRVIKAR Mrs. Archana Sinha For the Respondents : Mr. Arijit Chakraborti Mr. R R Tiwary ******** P R E S E N T HON’BLE MR. JUSTICE SUDHIR KUMAR.KATRIAR and HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH S K Katriar, J. This batch of four appeals under section 130 of the Customs Act 1962 (hereinafter referred to as `the Act’), challenge the validity of the order dated 12.8.2005, passed by the learned Customs, Excise, and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, whereby the four appeals preferred by the respondents herein have been allowed, and the orders of the learned adjucidating authority as well as the learned first appellate authority have been set aside. By interim order dated 20.4.2010, passed by this Court in the present batch of appeals, operation of the impugned order passed by the learned Tribunal, was stayed. 2. Before we proceed further, we wish to clarify that the original respondent of MA no. 41 of 2006, namely, Baji Rao Bombaywala, died during the pendency of the present proceedings, 3 and has been substituted by his heirs who are now opposing the appeal. 3. A brief statement of facts essential for the disposal of this appeal may be indicated. These appeals relate to the same occurrence with respect to unauthorized import of silver from across the Indo-Nepal border. Two more were found guilty, and punishment was imposed upon them, by the common order of the learned Joint Commissioner, being the first and the adjudicating authority. They did not pursue the matter further and let the same to become final in so far as they are concerned. The present respondents challenged the same by preferring separate appeals which were dismissed by two separate orders, the details of which would be indicated hereinafter, whereby the order of the learned adjudicating authority was upheld. Aggrieved by the orders, the four respondents herein preferred separate appeals which have been allowed by a common order of the learned Tribunal, and impugned herein. 3.1) The authorities under the Act had on 3.5.1993 intercepted Maruti Van No. DAC- 1219, near Jharua, Gandhi Setu, Hajipur, and recovered 16 pieces of silver weighing 80.45 kgs., comprising of 16 pieces of silver bars each weighing less than 30 kgs., secreted inside the inner panel of the rear door of the Maruti van, as well as 5 pieces of bandoleer jackets. Brijbihari Prasad was the owner of the said Maruti van. The vehicle was being driven by Ram Chandra Ram, the driver, and the second occupant of the vehicle was Mahesh Prasad, Manager of M/s of Brijbihari Prasad 4 Prabhu Prasad. The goods were seized and the confessional statements of Ram Chandra Ram and Mahesh Prasad were recorded in terms of section 107 of the Act. The following day their statements under section 108 of the Act were recorded which were to the same effect. They were arrested the same day, were forwarded to the court of the learned Magistrate and were remanded to judicial custody. 3.2) It further appears that, in course of the follow-up action, five pieces of bandoleer jackets were recovered from the premises of M/s Brijbihari Prasad Prabhu Prasad at Motihari which were used for illegal import and transport of silver from across Nepal. Apart from the confessional statements of the driver and the manager which implicated Brijbihari Prasad Prabhu Prasad, recovery of bandoleer jackets from their business premises led the authorities to believe that they were fully engaged in smuggling silver from Nepal. This led to interrogation of Brijbihari Prasad in terms of section 108 of the Act. Prabhu Prasad did not respond to the summons under section 108 of the Act as a result of which his statement could not be recorded inspite of full opportunity afforded to him. Therefore, show-cause notices were issued to Brijbihari Prasaad, Prabhu Prasad, Baji Rao Bombaywala and Abha Rao Bombaywala as well as Ram Chandra Ram and Mahesh Prasad. This was followed by arrest of Birjbihari Prasad. 3.3) In their interrogatory statements, Baji Rao Bombaywala and Abha Rao Bombaywala have admitted that they had melted and cut some big sized silver pieces into smaller pieces owned by 5 M/s Brij Bihari Prasaad Prabhu Prasad towards the end of April 93, but there was no material on record to connect the Bombaywalas with the seized silver. 3.4) On a consideration of the materials on record including the statements of the six persons and the cause shown by them, the learned Joint Commissioner of Customs, being the first and the adjucating authority, passed an elaborate order dated 23.6.2000, whereby the seized silver was absolutely confiscated, and imposed penalty which reads as follows:- “4. I impose the following penalties on the following persons under section 112 of the Customs Act, 1962 for detailed reasons recorded above – 1. Sri Brij Bihari Prasaad (address given in the notice) Rs.1,00,000/- 2. Sri Prabhu Prasad do Rs.1,00,000/- 3. Sri Ram Chandra Ram do Rs. 10,000/- Driver of Vehicle no.DAC 1219 4. Sri Mahesh Prasad do Rs. 25,000/- Manager/Munshi 5. Sri Baji Rao Bombaywala do Rs. 50,000/- 6. Sri Abha Rao Bombaywala do Rs. 50,000/- 7. Sri Narendra Nath Gupta do Rs. 50,000/- Above penalty is imposed on individuals considering their involvement in the instant smuggling of silver weighing 80.450 kgs. valued at Rs.5,22,925/-. The penalty shall be paid within thirty days from the date of receipt of this order.” It may be clarified that the authorities had not pursued Narendra Nath Gupta whose name inadvertently occurs in paragraph -4 of the order of the learned first authority. As stated hereinabove, Brijbihari Prasad was the owner of the Maruti van DAC -1219, which was intercepted and found carrying contraband goods. 3.5) Aggrieved by the order of the learned adjudicating authority, Brijbihari Prasad, Prabhu Prasad, Baji Rao Bombaywala 6 and Abha Rao Bombaywala preferred separate appeals before the learned Commissioner (Appeals). Ram Chandra Ram and Mahesh Prasad did not prefer any appeal as a result of which the order of the learned adjudicating authority attained finality in so far as they are concerned. The appeals preferred by Brijbihari Prasad Prabhu Prasad were dismissed by the learned Commissioner (Appeals), by a common order dt. 9.5.2003, passed in Appeal no.160- 161/P80/CUS/Appeal/2003, dt. 9.5.2003. The learned Commissioner (Appeals), dismissed the two appeals of the Bombaywala by a common order dt. 30.5.2003, in Appeal nos. 170-171/P80/CUS/Appeal/2003. By the two orders passed by the learned Commissioner (Appeals), the four appeals were dismissed, the findings of facts recorded by the learned adjudicating authority were affirmed, and the punishments imposed by him were also affirmed. 3.6) The four appellants preferred separate appeals before the learned Tribunal which have been allowed by a common order dt. 12.8.2005, passed in A-570-573/KOL/05, whereby the orders of the learned Commissioner (Appeals) have been set aside, and impugned herein. Hence these four appeals at the instance of the Commissioner of Customs. 4. While assailing the validity of the impugned order, learned counsel for the appellant submits that seizure of the articles in question by an officer below the rank of the officer contemplated by section 105 of the Act will not vitiate the seizure. She relies on the following reported judgments :- 7 (i) Radha Kishan vs.State of U.P., AIR 1963 SC 822 (Pr. 5) (ii) K I Pavunny vs. Asstt. Collector,(1997) 3 SCC 721 (Pr.10) She advanced elaborate submissions on the scope and sweep of notification no. 394/233/88/CUS (AS), dt. 11.6.90. She also submits that the statements of the charged persons under the provisions of sections 107 and 108 of the Act are admissible in evidence, and their culpability can be based on such statements. She relies on the following reported judgments:- (i) Naresh J Sukhawani v. Union of India 1995 Supp.(4) SCC 663 = AIR 1996 SC 5 (ii) Kanhaiyalal vs. Union of India (2008) 4 SCC 668 (Prs. 40,41) (iii) Collector of Customs vs. D Bhoormull 1983 (13) E L T 1546 (SC) (iv) Commissioner of Customs vs. Ghanshyam Pd.Gupta 2010 (3) PLJR 343 (Prs. 7 and 11) (v) Bhana Khalpa Bhai Patel vs. Asstt.Collector of Customs, Bulsar 1997 (96) ELT 211 (SC) (Pr. 6) She lastly submits that this Court should not normally sit in appeal with the formation of reasonable belief by the authorities under the Act. She relies on the judgment of the Supreme Court in State of Gujarat v. Mohanlal J Porwal, (1987) 2 SCC 364 = AIR 1987 SC 1321 (Pr.4). 5. Learned counsel for the respondents has supported the impugned order. He submits that the learned Tribunal has rightly held that an officer not below the rank of Assistant Collector can seize the articles in question. He relies on the provisions of section 2(34), section 110 of the Act, and the aforesaid circular dt. 11.6.1990. He has made elaborate submissions on the sweep and contents of the aforesaid circular dt. 11.6.1990. He next submits 8 that the appellants have not placed on record copies of the seizure list and statements of the charged persons. He submits in the same vein that copies of the statements of the witnesses and test reports have neither been supplied to the respondents, nor have been placed on record of these appeals. He next submits that the Board’s circular is binding on the department. He relies on the following reported judgments:- (i) Collector of Customs vs. Dhiren Chemicals Industries 2002 (139) E L T 3 (SC) (Pr.9) (ii) Commissioner of Customs v. Indian Oil Corpn.Ltd. (2004) 3 SCC 488 (Prs. 11, 12, 13) (iii) State of Kerala vs. Kurian Abraham Pvt. Ltd. 2008 (224) ELT 354 (SC) (Prs. 21, 22) He further submits that there is inadequate evidence on record to prove that 16 silver bars seized from the Maruti van were of foreign origin. In his submission, out of the 16 seized bars, three were bearing markings “OO”, “SA”, and “SDME”, which cannot lead to the conclusion that those three silver bars were of foreign origin. The conclusion to that effect by the learned adjudicating authority and the learned Commissioner (Appeals) is a presumption unrelated to evidence. He has also advanced submissions with respect to non-involvement of the two Bombaywalas, inter alia, relying on the provisions of section 2(23) which defines `import’. He also submits that no reliance can be placed on the retracted statements of the Bombaywalas, Ram Chandra Ram, and Mahesh Prasad. 6. Learned counsel for the parties jointly submit that the aforesaid submissions may be treated to be substantial questions 9 of law for consideration in the present appeal. 7. We have perused the materials on record and considered the submissions of the learned counsel for the parties. We shall first deal with the question whether or not seizure of the articles in question by an Inspector of the department, who is admittedly below the rank of Assistant Collector, will vitiate the seizure. We proceed on the assumption, for the sake of argument, that it could not have been done by a functionary below the rank of Assistant Collector. Law is well settled that an illegal seizure does not vitiate confiscation proceedings. Seizure is only a means to gather materials for the purpose to ascertain whether or not the seized articles were in possession of the persons concerned in violation of the laws of the land. Evidentiary value of the seized goods is of consequence. Reference may be made to the following observations of the Supreme Court in Radha Kishan vs. State of U.P. (supra):- “(5) We will deal with the last four points first. So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal, the seizure of the articles is not vitiated. It may be that where the provisions of Ss. 103 and 165 Code of Criminal Procedure are contravened, the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.” In other words, if the authorities under the Act, or for that matter the Court, are of the view that the mode and manner of seizure did not measure up to the strict standards of law, they will have to be 10 careful in examining the evidence. Such an irregular or illegal search or seizure is not per se bad in law. To conclude this aspect of the matter, we do not attach any importance to the position that the seizure in question had been done by a functionary below the rank of Assistant Collector. 8. The learned adjudicating authority and the learned Commissioner (Customs), have based their findings on the statements made by Ram Chandra Ram, the driver, and Mahesh Prasad, the Manager, who were the two occupants of the vehicle when it was intercepted and seizure was made. This was followed by the statements of Brij Bihari Prasad. Prabhu Prasad never appeared to record his statement inspite of summons to him. However, he submitted his written defence on 19.9.94. This was followed by the statements of the two Bombaywalas. We have no manner of doubt that the statements of these five persons were in terms of section 108 of the Act. 9. The scope and sweep of this provision of law has been the subject matter of a large number of authoritative pronouncements of the Supreme Court and the High Courts. It has been held that the statements under section 108 of the Act are in the nature of substantive evidence, and culpability of the concerned persons can be based on that. It has been held by the Supreme Court as follows in paragraph -7 of the judgment in Bhana Khalpa Bhai Patel (supra) :- “7. An attempt was made to contest the admissibility of the said statements in evidence. It is well settled that statements recorded under Section 108 of the Customs Act 11 are admissible in evidence vide Ramesh Chandra v. State of West Bengal, AIR 1970 SC 940, and K I Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, 1997 (90) ELT 241 (SC) = (1997) 3 SCC 721.” The Supreme Court has observed as follows in Naresh J Sukhwani (supra):- “4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani’s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.” 10. The learned adjudicating authority and the learned Commissioner (Customs), have relied on the statements of Brijbihari Prasad, Prabhu Prasad, Ram Chandra Ram, and Mahesh Prasad to reach the conclusion that the latter two are in the employment of the former two for a long time, and have been transporting such contraband silver from Nepal to different destinations, particularly Patna City. The following portion of the order of the learned adjudicating authority analyses the statements of Mahesh Prasad and Ram Chandra Ram:- “... In his voluntary statement dt. 3.5.93 Sri Mahesh Prasad employee admitted that while coming towards Patna by Maruti van no. DAC -1219, the Customs officials, Patna recovered 16 pieces silver weighing 80 kgs., approx. from rear portion of the Maruti. He also stated that the recovered silver was fitted in the rear portion of the van, which was subsequently photographed after unscreening. He also stated that the 12 legal papers were not produced by him on demand by Customs officials. He further stated that the owner of recovered silver was Sri Brij Bihari Prasad S/o Late Harihar Prasad, Sonapatti, Motihari, who gave his goods to M/s Mahabir Prasad Abhushan Bhandar, Gurhatta, Patna City three to four time in a month through his firm. He stated and admitted that the silver was fitted in the vehicle in his presence and was being delivered on direction of the owner. He also stated that as per his knowledge the silver was being smuggled from Birganj (Nepal) and was being melted from blocks by Sri Brij Bihari Prasad who got imprinted his own markings over blocks to give them the look of Indian silver from foreign silver. “ During interrogation on 4.5.93, Sri Mahesh Prasad stated that he had been working in the firm M/s Brij Bihari Prasad Prabhu Prasad for the last eight years. He also stated that he had been giving delivery of silver since very beginning of his employment but only to Sri Mahabir Prasaad, Patna City. He further stated that he had made one trip in March, 93 four times in April, 93 and this one in May, 93 for delivery of similar consignment in weight and quality but expressed his inability in giving details of old deliveries beyond March,93. He stated that the recovered silver was Pakki silver of 9950 fineness and pasa chandi as mentioned in the challan are known as mixed silver of less purity. He further stated that there was no facility for testing and melting job through `Bombaywala’. When asked about the imprint of chisel and left over origin marks he stated that Sri Rewati Prasad, `Samadhi’ of Sri Brij Bihari Prasad father-in-law of Sri Prabhu Prasad a resident of Birganj (Nepal) conducted the operation of smuggling of Nepal side like collection of foreign origin silver, cutting/melting in small pieces, removal of foreign marking by chiseling etc. and then they were being imprinted with the marks of Brij Bihari Prasad Prabhu Prasad before being smuggled as per demand into India. He stated that Sri Brij Bihari Prasaad and Sri Rewati Prasad were partners in the illegal business. He stated that recovered documents no.3 a departmental instructions regarding seizure of silver weighing less than 100 kgs. was given to him by Sri Bri Bihari Prasaad himself to show to the Customs department during checking. He further stated that the letter and challan were prepared by Sri Prabhu Prasad. “ Sri Mahesh Prasaad submitted his written defence reply on 19.9.94 in which he denied all the charges levelled against him and denied having given any statement before the Customs officials. He requested for 13 opportunity of personal hearing. “ In his voluntary statement on 3.5.93 Sri Ram Chandra Ram, driver of the Matuti van stated that he was the driver of Maruti van no.DAC-1219 and stated that 16 pcs. of silver weighing 80 kgs. approx. were recovered by Customs from the rear portion of the van near Jarua, Gandhi Setu, Hajipur. He further stated that he used to deliver silver to Sri Mahabir Prasaad at Patna City 2-3 times in a month with silver of Sri Brij Bihar Prasaad Prabhu Prasad. “ Sri Ram Chandra Ram, driver interrogated on 4.5.93 in which he stated the same facts as above and further added that during the last two month he made six trips with consignment sof silver to M/s Mahabir Abhushan Bhandar, Patna City in Maruti van no.DAC -1219. He also stated that Sri Mahesh Prasad tried to bribe Customs officials after interception then only he came to know about illegal work being done. He further stated that on the direction of Sri Mahesh Prasad, (Munshiji) he opened the panel of rear portion of the van by unscrewing with screw driver. “ Sri Ram Chandra Ram, Driver, submitted his written defence reply on 19.9.94 in which he denied all the charges levelled in the show cause notice and denied having given any statement to the Customs officers.” 11. It is thus evident that from confessional statements of the driver and the manager that they are employees of M/s Brijbihar Prasad Prabhu Prasad for a long time and regularly transporting contraband silver smuggled from Nepal. We, therefore, disagree with the approach of the learned Tribunal which has rejected the statements of the driver and the manager on the ground that their evidence is in the nature of hearsay. It will bear repetition to state that, in view of their prolonged employment and perennial job of transportation of contraband silver, it was a matter within the domain of their personal experience and knowledge over a long length of time. The learned Tribunal has, 14 therefore, erred in law in discarding their evidence on the ground that those are hearsay evidence. To this has to be added the statements of Brijbihari Prasad and Prabhu Prasad who had confessed that they are engaged in the business of the illegal import of silver from Nepal. Although the two Bombaywalas have also stated to the effect that they have been doing the job of erasing the markings on the silver bars and superimposing fresh markings brought by Brijbihari Prasad and Prabhu Prasad, but we are not taking the same into account to determine the culpability of these two persons for the reason which would be clear when we deal with their cases hereinafter. We, therefore, conclude that the Tribunal has erred in discarding the evidence of the four persons, particularly the driver and the manager, on the ground that their’s is hearsay evidence. In other words, their evidence is worthy of reliance, and the conclusion of the learned adjudicating authority and the learned Commissioner (Customs), is hereby restored. 12. We must at this juncture consider the submission advanced on behalf of the learned counsel for the respondents that the learned Tribunal has rightly discarded the evidence of Ram Chandra Ram, Mahesh Prasad, and the Bombaywalas on the ground that they had subsequently retracted from their confession. We have hereinabove already discarded the evidence of the Bombaywalas for the reasons indicated hereinabove. In so far