A concise defense to SCN is all you need to have a look at in order to make quick sense of the contentions of the noticee. Contentions in Concise form is extremely helpful to shape up the contours of draft OIO as it poses the precise points which the noticee has problems with. Problem is that the concise form of defense is not furnished by the advocates in the beginning and instead they furnish a long elaborate story which is roundabout manner of saying the precise and simple things. If you feel overwhelmed with the voluminous nature of defense submitted at the first stage, you can ask the defense advocate for to-the-point contentions. The present post is about exemplifying a concise defense to SCN vis-a-vis the lengthier version of it (available here). Before moving ahead let us go through a brief account of the matter as an example
Brief Account of the Seizure Made by a Striking Unit
Mr. LN Ahmed landed to CSMIA Mumbai from Muscat and was apprehended by the AIU officers Customs after he cleared himself through green channel with a diamond studded necklace and pair of ear rings provisionally valued at Rs. 1,80,00,000/- In his statement he admitted that he was carrying the jewellery from Muscat and tried evading the Customs Duty including other things. The value being upwards of Rs 20,00,000 Mr. LN Ahmed was arrested and produced before Addl CMM Court Esplanade, Mumbai. He was taken in judicial custody for around a month and later was granted bail at suitable conditions.
In the meantime, the detained Mr. LN Ahmed filed retractions to his submissions made during the course of interception and seizure interalia submitting few documents to show that the jewellery was Indian origin and he had taken the same outside the country to show to one of the Customers of the Jewellery shop in Muscat for which he worked as a salesman. In support of the jewellery being of Indian origin he had also submitted the labour bills of Mumbai and the entrustment allegedly signed by Mumbai based Jeweller whom the jewellery allegedly belonged to.
The Investigation however, when summoned the concerned Mumbai jeweller and the labour invoice issuer did not turn up to give statement or produce evidence repeatedly on pretext of one or other reasons. The accused also requested for revaluation of the jewellery which was entertained by the Customs Authority and was revalued to Rs. 85,00,000/-. Lastly, within 6 months of initiation of the investigation AIU issued a SCN to the noticee passenger, proposing absolute confiscation of the seized jewellery and imposition of personal penalty while keeping the investigation open against who did not turn up upon being summoned. With all this in Background, the accused files below submission (defense) in response to SCN (The elaborate Defense can be found here)
A Concise Defense to SCN Furnished on Behalf of Noticee
1.0. The facts out of which the offence arose briefly include: that the noticee on his arrival at Mumbai airport on 7.10.2019 from from Muscat, was intercepted by an AIU Officer after he cleared himself through green channel; that when the passenger was asked by the Customs officer as to whether he had any goods to declare, he replied in the negative; that on examination of the baggage and physical search of the passenger noticee, the customs officer recovered one necklace studded with diamonds and one set of ear rings studded with diamonds from the right-side pocket of the trousers worn by the noticee; that the jewellery was valued at Rs. 1,80,00,000/- and seized by the Officers in the reasonable belief that the same were being smuggled into India and hence, liable to confiscation under the provisions of Customs Act, 1962; that the noticee was arrested on 7.10.2019 and produced before the Hon’ble Addl CMM, 8th Court, Esplanade, Mumbai on 8.10.2019; that he was later released on bail by the Additional Sessions Judge on 06.11.2019.
2.0. After completion of the investigation, Show Cause Notice dated 20-3-2020 was issued on Mr L N Ahmed. In the said Show Cause Notice under Para 22 thereof, the noticee Mr L N Ahmed has been called upon to explain and show cause in writing to the Additional Commissioner of Customs, Adjudication Cell, Mumbai-400059 as to why:
i) The seized 18 KT gold diamond studded jewellery totally valued at 85,00,000/- should not be absolutely confiscated under Section 111(d), (1) and (m) of the Customs Act, 1962.
ii) Personal penalty should not be imposed on Mr L N Ahmed under Section 112(a) and (b) of the Customs Act,1962.
iii) Copy of e-boarding pass, plastic pouch and tissue paper which was used for concealment of the jewellery should not be confiscated under Section 119 of the Customs Act, 1962.
3.0. Defense Submission of Noticee Mr L N Ahmed
I. The impugned Show Cause Notice issued without a valid digital DIN (Documentation Identification Number) is invalid and it is to be considered that it was never issued. Therefore, the seized jewellery is liable to be released unconditionally.
II. Copy of the seizure panchanama and statement dated 7-10-19 were not given to the passenger noticee after completion, which caused prejudice to the noticee. The case against the noticee is therefore vitiated.
III. The noticee’s statement dated 7-10-19 was involuntary and against truth. It cannot be relied upon.
IV. Retracted statement of the noticee dated 7-10-19 in the absence of any corroborative evidence from an independent source outside the confession cannot be relied upon in the present case. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. Retracted statement of the noticee cannot be used against him in the present case since the charges have not been corroborated from independent sources.
V. Noticee Mr L N Ahmed is neither a carrier nor a professional smuggler and there is no evidence to prove the allegation that he was a carrier. He committed the mistake of non-declaration of the goods to Customs under a bonafide belief that he was not required to do so. The Department failed to prove its case against the noticee even with preponderance of evidence.
VI. There was no ingenious concealment. The noticee did not adopt any ingenious method for concealing the jewellery. He was carrying the jewellery in the pocket of the trouser worn by him. The noticee had no wrongful intention to evade any Customs duty or intentionally not declaring the jewellery to Customs.
VII. The jewellery is Indian made and there is no proof that it is of foreign origin. The case was made on the basis of assumption and presumption of the investigation. To prove that the jewellery was made in India, the noticee submitted documents such as labour bills for making of the jewellery, ‘Acknowledgement of Entrustment’ dated 18-9-19 issued by M/s AMK Enterprises and the Jewellery Report issued by the Global Gemmological Laboratories. The said documents were not accepted by the Department on the ground that the labour bills could not be correlated with the seized jewellery and genuineness of the ‘Acknowledgement of Entrustment dated 18-9-19 was doubtful, no information was found in the QR code on the Jewellery Report by Global Gemmological Report. The Investigating Agency should have made sincere efforts and taken following steps to verify the genuineness of the documents submitted by the noticee.
(i). Visit the business premises of the concerned persons for verification of the genuineness of the Bill no 113 dated 9-6-2017 and bill dated 10-9-19 relating to the job work for making of the jewellery under seizure.
(ii). Verify the bank transaction with regard to the payment of Rs 45,000/- under Axis Bank Cheque no 252887 towards the bill no 113 dated 9-6-2017.
(iii). Contact the Global Gemological Laboratories Pvt Ltd, Mumbai, for verification of the genuineness of the Jewellery Report no FC1909120001.
VIII. Remand of the noticee to judicial custody was illegal. Valuation of the jewellery was assessed improperly and dishonestly on 7-10-19 at the time of seizure. Valuation of the seized goods was not done on a realistic basis. The Appraiser appears to have acted as an advocate to reach a desired value for the Customs Department. Value of the jewellery brought by the noticee was artificially inflated and over valued at Rs. 1,80, 00,000/- to arrest him and to send him to judicial custody. There is violation of fundamental rights guaranteed under Article 21 of the Constitution of India. The damage caused to Mr. L N Ahmed cannot be undone.
IX. The noticee seeks for cross-examination of panchas and officers. Cross examination is a legal right available to the accused person. If opportunity for cross-examination is denied, it would axiomatically lead to the conclusion that a breach of principles of natural justice would occur. Cross-examination is one part of the principles of natural j
X. Valuation report dated 12-2-2020 is not acceptable and cannot be relied upon. During the course of investigation of the case, the noticee submitted the valuation report dated 16-9-19 issued by Government Approved valuer Mr Anil Wazge wherein the value of the jewellery was certified as Rs. 60,00,000/-. This was the price at which the jewellery was to be offered for sale to the Customer. The said valuation report was issued by the Government Approved valuer Mr Anil Wagh on 16-9-19 i.e, two days prior to the receipt of the jewellery by Mr L N Ahmed. On the basis of the request made by the noticee for revaluation of the jewellery, the Investigating Agency got the jewellery revalued on 12-2-2020 by Government Approved Valuer Mr Mahesh Borade who assessed the total value of the jewellery at Rs. 85,00,000/-. The difference in the value given by Mr Anil Wagh and Mr Maheshbhai is Rs. 25,00,000/. The authority who issued the impugned SCN took the value of Rs. 85,00,000/-.into consideration for Customs purpose.
XI. Ignorance of Customs law can be an excuse. The noticee is not liable for any penalty. The noticee was under the bonafide belief that since the jewellery was of Indian origin, he was not bound to declare the same before Customs. He was ignorant of Customs laws in India. Failure to declare the jewellery carried by him to Customs was a mistake committed by the noticee on the bonafide belief that the jewellery brought by him was not dutiable. Such an act on bonafide belief, can never be justifiable ground for absolute confiscation invoking the provisions of Section 111 of Customs Act, 1962. The act of the noticee to carry the gold safely keeping it in his trouser pocket cannot be termed as concealment or as an organised crime or manifesting of an organised activity.
XII. Call records cannot be considered as evidence against the noticee that he was involved in any act of smuggling. Call Detail Records in respect of the mobile phone of the noticee were not collected from the Mobile Service Provider. Sharing of the calls between two or more persons cannot be construed as corroboration or proved involvement of the noticee in the alleged offence. Merely on the basis of such call records, it cannot be concluded that the noticee was involved in smuggling operations, as alleged by the Investigating Agency.
XIII. The show cause notice dated 20-3-2020 prejudged the entire issue and thus prejudiced the noticee. The impugned show cause notice is bad in law on the ground that the show cause notice has pre-judged and pre-determined the entire issue and left nothing for the Adjudicating Authority to enquire into. In the present case, the opportunity of submitting defence reply to the Show Cause Notice and hearing has become an idle formality and farce. The Show Cause Notice dated 20-3-2020 is therefore liable to be set aside.
XIV. Investigation in the present case was carried out in an unfair manner only to target Mr L N Ahmed. Investigation of a single case of smuggling with common facts on the same evidence in the same acts or transactions cannot be bifurcated against a particular accused for the purpose of further investigation and separate adjudication proceeding against the said accused. Investigation in the present case is ex-facie illegal, improper and quite unjust. AIU commenced investigation in the present case on 7-10-19 on the basis of an intelligence alleged to have been received and intercepted passenger Mr L N Ahmed who had arrived from Muscat by Gulf Air Flight no GF 64 who was carrying the diamond jewellery. Investigation was continued till 19-3-2020 and Show Cause Notice was issued within 5-12 months of seizure i.e, on 20-3-2020 on Mr L N Ahmed only. Investigation of a single case of smuggling with common facts on the same evidence in the same acts or transactions cannot be bifurcated against a particular accused for the purpose of further investigation and separate adjudication proceeding against the said accused. If any further investigation is carried out by the Investigating Agency after the issuance of SCN dated 20-3-2020, it would be illegal.
XV. Detention of the noticee’s passport is illegal. There is no proposal in the impugned SCN dated 20-3-2020 for impounding his passport and therefore, it is illegal on the part of the department to retain his passport despite the fact that the investigation of the case is already over. The noticee submits that the detention/seizure of his passport is illegal, since Customs Officers have no power to seize or detain or take away his passport either under the Passport Act 1967 or under Customs Act or any other Act. His oral request for return of his passport was refused by the Officers on the ground that the matter was under investigation and the passport could not be returned to him at that stage.
XVI. The noticee does not have any claim over the seized goods. M/s AMK Enterprises, Mumbai are the legal owners of the property under seizure and the ownership of the said Indian made jewellery was never transferred to Mr L N Ahmed and it still rests with M/s AMK Enterprises only which is evident from the terms and conditions of the Acknowledgment of Entrustment dated 18-9-19. No payment was made to M/s AMK Enterprises. The jewellery was not handled in any manner while it was in his custody from 19-9-19 to 7-10-19. He doesn’t have any claim or right over the jewellery under seizure and he has no objection to release the jewellery to M/s AMK Enterprises, Mumbai. Mrs Marlyn Ahmed, Proprietrix of M/s Muscateer Jewellers, Muscat has also sent a letter to the Additional Commissioner of Customs for releasing the jewellery to M/s AMK Enterprises.
XVII. The noticee Mr L N Ahmed submits that he may kindly be exonerated from the case, since he committed the mistake unintentionally. The jewellery under seizure may be released to Mr AK Sharma, Partner of M/s AMK Enterprises, Mumbai as the rightful and legal owner of the jewellery. Mrs. Marlyn Ahmed has also renounced the ownership of the jewellery by her letter addressed to the Additional Commissioner of Customs, CSMI Airport, Mumbai (copy enclosed for reference).
XVIII. It was a single and solitary incident of an alleged act of smuggling of goods, which can never be justifiable ground for absolute confiscation invoking the provisions of Section 111 of Customs Act, 1962. The noticee did not commit any act of omission or commission which can be termed as a crime or manifesting of a smuggling activity. The test in such a case is to see whether the act is such that it gives rise to an inference that the noticee was an offender.
XIX. The noticee is from a respectable family and a law-abiding citizen/ businessman and he has never come under any adverse remarks. Though his arrest was legal, the Investigating Agency unlawfully made his case as cognizable and non-bailable by artificially inflating the value of the jewellery as Rs. 1,80,00,000/- and made him undergo unlawful judicial custody thus causing loss of 30 days (from 8-10-19 to 6-11-19) of his valuable life and causing social stigma and ostracization to him even after being released on bail. The noticee was thus, made a victim of false indictment. The right of the underprivileged always becomes harder to protect.
XX. It was a very difficult experience for his family to deal with. There was no help at hand. It was a frightening and traumatic experience for his entire family. His family still struggles to come to terms with what had happened. His school going children were profoundly affected and were devastated. In the immediate aftermath of the arrest, his family faced a number of difficulties and struggles with feelings of shame and guilt. The noticee in India and his family in Muscat ended up in debt, which caused further anxiety. Learning to cope with the life after jail custody and altered circumstances caused by the arrest is something that takes a long time. Article 9 of the same Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile”.
XXI. The noticee is jobless for more than 10 months and his family is suffering in Muscat because of his absence. He is the only breadwinner in the family. His passport and mobile phone may be released to him immediately and further proceedings against him may be dropped.
XXII. The noticee craves leave to add, alter or amend any of the foregoing submissions. Opportunity to be heard in person may be given.
Advocate for L N Ahmed
That’s it about a concise defense! The points are largely non-exclusive, succinct and in a manner that does not use literary roundabout and circumlocution unlike an elaborate piece of defense document.
Important Reads on this Blog
Defense to SCN in Crude Gold Item Seizure: How it Looks Like
Tackling Reply to SCN from Noticee in a Typical Seizure Case
Brief facts of Case for an OIO When Noticee Contends Seizure to be Invalid