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2021-TIOL-252-SC-CUS-LB
AT Mydeen Vs Asstt. CC Department
Cus - Smuggling of sandalwood - Anti-Smuggling Wing of the Customs department at Tuticorin, raided a warehouse upon receipt of some specific information - In the raid, large quantities of cardboard boxes were recovered - Three persons were also present there andupon questioning, Nathan admitted that 419 cardboard boxes contained sandalwood billet/sticks [valued at Rs. 96,52,800/-] and 57 cardboard boxes contained Mangalore tiles [valued at Rs. 10,000/-]; All the above cardboard boxes were kept for export from Tuticorin to Singapore allegedly clandestinely and to be delivered to one RN Contractors Enterprise Company, Singapore - Consequently, the above 476 cartons, plastic strips, packing materials, loose Mangalore tiles, marking stencil plates were seized before two witnesses and separate memos (Mahazars) were prepared - Assistant Commissioner of Customs filed criminal complaint against five accused namely A. Dhanapal, A.T. Mydeen, Janarthanan, N. Ramesh and Rahman Sait for offence punishable under sections 132, 132(1) (a)(ii) and 135A of the Customs Act - The prosecution examined seven witnesses and filed 13 documents which were duly proved by the witnesses and marked as exhibits - Sixth accused K.M.A. Alexander who was absconding was later arrested andas separate complaint was filed by Assistant Commissioner against him- Trial Court on 23.05.2008 delivered two separate judgments in both the cases i.e. C.C. Nos. 2 of 2003 and 4 of 2004 and recorded acquittal of all the accused inter alia on the grounds that no evidence was shown to prove that the accused are Customs House Agents and they packed and kept the boxes and had an intention to attempt to export Sandal Wood, illegally to Singapore; that it was proved that the sandalwood had arrived at Tuticorin two months before; that it was not proved beyond reasonable doubt that the accused, with the intention of evading customs duty under section 135(1)(a)(ii) of the Customs Act, had attempted to export carton containing prohibited sandalwood by means of forged documents; that case is pending before the Forest Department officials and hence this court cannot pass any order permitting customs officials under Section 126 of Customs Act either for sale or for auction - Customs Department preferred two appeals and the Single Judge, Madurai Bench of the Madras High Court, by judgment dated 19.10.2019 recorded conviction of all six accused under section 135(1)(a)(ii) read with 135A of the Customs Act - Six accused have separately approached the Supreme Court - Appellant No.1, Janarthanan is reported to have died on 28.09.2021, as such the appeal stands dismissed as abated against him -Issue which falls for consideration is whether the evidence recorded in a separate trial of co-accused can be read and considered by the appellate court in a criminal appeal arising out of another separate trial conducted against another accused, though for the commission of the same offence.
Held: [para 19, 20, 21, 22, 23, 25, 29, 35, 37, 38 to 42, 44 to 46]
+ We have to bear in mind that fair trial is the foundation of the criminal justice delivery system and there are certain guiding principles to ensure a fair trial against an accused. The statutory arrangement of our criminal justice delivery system encompasses few provisions in that regard under the Cr.P.C. and the Evidence Act, 1872. [para 19]
+ Section 273 of Cr.P.C. provides that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his attendance is dispensed with, in the presence of his pleader.
+ The exception of this provision finds place in section 205 of Cr.P.C.. Besides such an exception, the basic principle of recording evidence in presence of the accused is imperative.
+ Like-wise, section 278 of Cr.P.C. provides that as soon as the evidence of each witness in a criminal trial is taken under section 275 or 276, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Section 279 of the Cr.P.C. also provides for interpretation of evidence to the accused in open court, in case he is present and such evidence is given in a language not understood by him.
+ In the Evidence Act, 1872, section 33 provides relevancy of certain evidence for proving, the truth of facts stated therein, in any subsequent proceeding, according to which evidence given by a witness is treated to be relevant in a subsequent proceeding or at a later stage in the same proceeding under certain eventualities.
+ So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously.
+ In this regard, another instance of requirement of joint trial for admissibility of confession as provided under section 30 of Evidence Act, 1872 may be noted. According to which when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person making such confession.
+ Whether prejudice or not, the fact remains that the High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials.
+ The prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited. The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case.
+ The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.
+ Evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view taken by the Calcutta High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view.
+ The culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.
+ The essence is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.
+ It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court's power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal.
+ In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons.
+ Single Judge of the High Court has apparently not adopted the correct procedure prescribed under law and, therefore, the judgment of the High Court needs to be set aside. Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal. There cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim. Therefore, it would be in the fitness of things and in the interest of the parties that the matters are remanded to the High Court for a fresh decision in accordance with law and in light of the discussion and observations made above.
+ Appeals allowed. Judgment of the High Court passed on 19.10.2019 is set aside. The appeals shall be heard by the High Court afresh.
- Matter remanded: SUPREME COURT OF INDIA
2021-TIOL-2102-HC-KAR-CUS
CCE, C & ST Vs Such Silk International Ltd
Cus - Respondent had imported capital goods and raw materials duty free by availing exemption under Notification No. 53/1997-Cus - Tribunal has held that duty is not payable on imported capital goods for failure to fulfil export obligation, by referring to the judgment in the case of M/s. Hindustan Agrigenetics Ltd. = 2010-TIOL-1525-CESTAT-BANG - The respondent has agreed to pay duty on raw material - Revenue is in appeal against the order dated 06.02.2018 = 2018-TIOL-2277-CESTAT-BANG passed by the CESTAT - One of the substantial question of law raised by Revenue is whether CESTAT, Bengaluru is justified/correct in setting aside the demand confirmed by the Adjudicating for recovery of duty for non-fulfilment of the condition 6( i ) of the Notification No. 53/1997-Cus.
Held: Respondent-assessee has raised preliminary objection regarding the maintainability of the appeal under Section 130 of the Customs Act, 1962 - Issue is no more res integra inasmuch as in identical circumstances, in the case of Commissioner of Customs, Bangalore-1 Vs. M/s. Motorola India Ltd., = 2019-TIOL-398-SC-CUS-LB , the Apex Court has categorically held that, whether terms and conditions of Notification have been complied with by the assessee or not and whether the levy of duty, interest and penalty were legal or not and whether the CESTAT was justified in setting aside the levy of duty, interest and penalty and all these questions were related to determination of rate of duty payable and therefore, the said issue has to be decided by the Apex Court in an appeal to be preferred under Section 130E of the Customs Act and not by the High Court in an appeal preferred under Section 130 of the Customs Act, 1962 - Bench is, therefore, of the considered view that the appeal under Section 130 of the Act before this Court would not be maintainable and the appellant/revenue has to pursue its grievance by filing an appeal under Section 130E of the Act before the Apex Court - Appeal dismissed: High Court [para 6, 11, 12]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-685-CESTAT-DEL
Shree Cement Ltd Vs CCE & CGST
ST - The appellants claimed rebate/benefit of Notfn 41/2012-S.T. and both the lower authorities have considered the conditions of said Notfn vis-à-vis the factual matrix of cases and have concluded that the appellants had not satisfied the conditions - This is a case where, rebate of service tax paid on Manpower Supply Agency, Sampling/Analysis and Survey, Port Services – Barging and Loading, used by appellant for exporting their goods, was claimed - From the fact that the appellants chose not to participate in adjudication proceedings, it becomes clear that place of services has not been placed on record - The appellants have failed in discharging their responsibilities at least bringing actual facts on record, which is their duty - The Adjudicating Authority was left with no choice other than passing the order, based on materials on record - Appellants have invited such an order which cannot be questioned by them, urging different facts and grounds as canvased by appellants before this forum - The appellants have no documentary evidence to rebut the findings of Adjudicating Authority - In view of the decision of Supreme Court in Dilip Kumar & Company 2018-TIOL-302-SC-CUS-CB , no justifiable reasons found to interfere with the findings of lower authorities - Appellants would contend that if not the benefit of Notfn, appellants are otherwise eligible to refund of CENVAT Credit in terms of Rule 5 of CCR, 2004 - In the interests of justice, this issue requires examination by Adjudicating Authority and in view thereof, issue is remanded to the file of Adjudicating Authority, who shall only verify the claim of refund of appellants under Rule 5 ibid. and pass a speaking order thereafter - The appellants are also directed to co-operate without seeking unnecessary adjournments, so as to enable the Adjudicating Authority to pass a de novo order on this issue, but however, within a period of six months: CESTAT
- Appeals allowed: DELHI CESTAT
2021-TIOL-684-CESTAT-MAD
Jakhau Salt Company Pvt Ltd Vs CGST & CE
ST - The appellants claimed rebate/benefit of Notfn 41/2012-S.T. and both the lower authorities have considered the conditions of said Notfn vis-à-vis the factual matrix of cases and have concluded that the appellants had not satisfied the conditions - This is a case where, rebate of service tax paid on Manpower Supply Agency, Sampling/Analysis and Survey, Port Services – Barging and Loading, used by appellant for exporting their goods, was claimed - From the fact that the appellants chose not to participate in adjudication proceedings, it becomes clear that place of services has not been placed on record - The appellants have failed in discharging their responsibilities at least bringing actual facts on record, which is their duty - The Adjudicating Authority was left with no choice other than passing the order, based on materials on record - Appellants have invited such an order which cannot be questioned by them, urging different facts and grounds as canvased by appellants before this forum - The appellants have no documentary evidence to rebut the findings of Adjudicating Authority - In view of the decision of Supreme Court in Dilip Kumar & Company 2018-TIOL-302-SC-CUS-CB , no justifiable reasons found to interfere with the findings of lower authorities - Appellants would contend that if not the benefit of Notfn, appellants are otherwise eligible to refund of CENVAT Credit in terms of Rule 5 of CCR, 2004 - In the interests of justice, this issue requires examination by Adjudicating Authority and in view thereof, issue is remanded to the file of Adjudicating Authority, who shall only verify the claim of refund of appellants under Rule 5 ibid. and pass a speaking order thereafter - The appellants are also directed to co-operate without seeking unnecessary adjournments, so as to enable the Adjudicating Authority to pass a de novo order on this issue, but however, within a period of six months: CESTAT
- Appeals disposed of: CHENNAI CESTAT |
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