Page 179 - ELT_15th July 2020_Vol 373_Part 2

2020 ] ODIYANDA AYYAPPA MUDDAIAH v. COMMISSIONER OF CUS., MANGALORE 161

7. A plain reading of above provision would indicate that in every case
under the said Chapter i.e., Chapter XIV under which anything is liable to be
confiscated or any person is liable to be imposed with the penalty has to be adju-
dicated under Clause (a) of Section 122 of the Act by the Principal Commissioner
of Customs or Commissioner of Customs or a Joint Commissioner of Customs
without limit. Under Clause (b) the penalty has to be adjudicated by the Assis-
tant Commissioner of Customs or Deputy Commissioner of Customs where the
value of goods came to be confiscated does not exceed Rs. 5 Lakhs and under
Clause (c) same shall be adjudicated by a Gazetted Officer of Customs lower in
rank than an Assistant Commissioner of Customs where the value of the goods
confiscated would not exceed Rs. 50,000/-. Undisputedly, in the instant case,
value of goods was more than Rs. 5 lakhs and as per the appraisal value, who
had appraised the gold bar so confiscated and had certified the weight at 2566.05
grams of 24 carat gold of foreign origin he had valued at Rs. 77,87,962/-. Before
levy of penalty show cause notice came to be issued by Additional Commission-
er of Customs proposing to levy penalty on appellant.
8. Additional Commissioner of Customs adjudicated said show cause
notice and by order dated 4-8-2017 ordered for confiscation of contraband gold
so seized and levied penalty as indicated herein above. Section 2(8) of Act defines
the Principal Commissioner of Customs or Commissioner of Customs to include
the Additional Commissioner of Customs for the purposes of the Act except for
the purposes of Chapter XV. In other words, wherever the words “Principal
Commissioner of Customs” or “Commissioner of Customs” occur in any Chapter
under the Act other than Chapter XIV it would mean and include Additional
Commissioner of Customs also. In the instant case, order under Section 122 hav-
ing been passed by the Additional Commissioner of Customs under Chapter
XIV, said authority would fall within the definition of Section 2(8) and as such
order passed by the Additional Commissioner of Customs cannot be faulted or
in other words, contentions raised by Sri Dakshina Murthy, Learned Counsel
appearing for appellant cannot be accepted and it stands rejected.
9. Insofar as, merits of the case is concerned, it would clearly emerge
from the orders of the original authority as affirmed by the appellate authority
the statement of appellant recorded under Section 108 of the Customs Act penal-
ty under Section 112(a) came to be imposed. In fact, whatsapp messages ex-
changed between the noticees including the appellant herein, which formed part
and parcel of the show cause notice and adjudication order, it came to be held
that appellant herein has admitted in his statement furnished under Section 108
of the Customs Act and his role in the act of smuggling of gold or in other words,
appellant has admitted his guilt, which statement so tendered by him was before
the Customs officers, who is not a police officer. A statement of an accused under
Section 108 when recorded by a Customs Officer the safeguards provided under
Section 164 of Cr.P.C. is not required to be followed. It is in this background,
original authority as well as appellate authority have examined the statement.
10. In fact, appellant has not retracted his retrospective statement and it
has never been contended by the appellant that statement has been obtained
from him under threat or duress or coercion. It is only after show cause notice
was issued proposing to levy penalty, appellant has tried to retrace his steps and
not before the said date. It is for this reason appellate tribunal has recorded the
following finding :

EXCISE LAW TIMES  15th July 2020  179