Shri Sanjeev Wadhwa and Another vs Union of India (UOI) and Others

Sanjiv Khanna, J.—The Petitioners, Sanjeev Wadhwa and Rajeev Wadhwa had preferred revision petitions u/s 129DD of the Customs Act, 1962 (Act, for short) against the orders imposing personal penalty of Rs. 5,00,000/- and Rs. 2,00,000/- respectively passed by the Additional Commissioner of Customs and confirmed in appeal by the Commissioner of Customs (Appeals).

The impugned order dated 17th December, 2009 passed by the Joint Secretary, Government of India, records the factual matrix and how the custom officers had intercepted one passenger Krishan Kumar Gupta with foreign currency equivalent to Rs. 52,27,887/- and Indian currency of Rs. 2,00,000/-. It is stated that Krishan Kumar Gupta in his voluntary statement recorded u/s 108 of the Act had implicated Rajeev Wadhwa, who was a Director of Mahavir Forex Private Limited. The said Rajeev Wadhwa was detained under the provisions of COFEPOSA Act, 1974. Sanjeev Wadhwa was also one of the Directors of the said company. The impugned order rejects the appeal recording as under:

Government has carefully gone through the case records, order-in-original, order-in-appeal and written as well as oral submissions. Since the issue involved is same, both revision applications are taken up together for decision by this single order.

On perusal of records, it is observed that the passenger Shri Krishan Kumar Gupta had stated that the seized foreign currency equivalent to Rs. 43,37,704/- was handed over to him by Shri Rajeev Wadhwa Director M/ Mahavir Forex (P) Ltd. The second applicant Shri Sanjeev Wadhwa is another Director of said company. Both the applicant failed to appear before Customs for tendering their statement despite repeated summons issued to them during investigations. Department has also filed complaint against them in court of law for non-compliance of summons. They have not availed the opportunity of clarifying their position at the relevant time. As such their plea that they were falsely implicated cannot be relied at this stage. Commissioner (Appeal) has discussed in findings of impugned orders the facts gathered during investigations which prove that applicants were involved in said illegal exportation of foreign currency. Government agrees with the findings of Commissioner (Appeal) and finds no infirmity in the said orders-in-appeal. Therefore, Government uphold the said orders-in-appeal.

Learned Counsel for the Petitioners has rightly drawn our attention to various contentions and issues which were raised before the authorities. He has also drawn our attention to the order passed by the Additional Commissioner of Customs imposing penalty and contentions and issues raised by the Petitioners. One of the question raised relates to scope and ambit of Section 108 of the Act and to what extent the said statement is admissible against a third party when the said third party has not been given right to cross-examination. It is submitted that the Petitioners have been implicated only on the basis of the statement by the third person.

The impugned order passed by the Joint Secretary, Government of India, dated 17th December, 2009 is cryptic and devoid of reasons, which are heart and soul of any quasi judicial order. The impugned order does not even refer to the submissions made on behalf of the Petitioners, evidence/material relied upon by the Petitioners and deal with them. The legal submissions have not been adverted to and examined. It may be noticed here that the order passed by the Additional Commissioner of Customs is a very detailed order referring to various aspects, including the legal issues and contentions raised by the Petitioners. It is impossible to decipher from the impugned order what weighed and mattered with the revisionary authority and the impugned order merely makes general references and has gone on to record "findings" without any discussion and reference to material. In these circumstances, the impugned order dated 17th December, 2009 is set aside and the matter is remanded to the Joint Secretary, Government of India, for fresh adjudication. To cut short the delay, the Petitioners are directed to appear before the Joint Secretary, Government of India, on 30th May, 2011 at 2.30 p.m., when a date of hearing will be fixed. This order should not be construed as observations on the merits on the contentions of the parties.

The writ petition is disposed of.