JUDGMENT : G.S. Patel, J. A. PREFATORY 1. The factual background to these appeals is startling, and reads like a script for a high-octane action movie: a daredevil customs officer, allegations of gold smuggling, dinghies arriving on a deserted south Goa beach and offloading cargo said to contain contraband gold, a group of men alleged to be smugglers, some with political connections, one a former Chief Minister of Goa, a high-speed carand- motorcycle chase along narrow village roads in south Goa, a knife fight, accusations of murder, silent villagers and bystanders, and three separate but interlinked courtroom dramas that travelled twice to the Supreme Court. There is more than a touch of magic realism in all this, and the whole of it sometimes feels like a piece of fiction, a hybrid of Marquez, Ludlum and Grisham. It could only happen in Goa. Yet, while there is no dearth of distractions, the common issue in law in all five appeals is very narrow indeed: without any seizure or confiscation of the alleged contraband gold, i.e., without it being available and in hand, and based only on the evidence of three witnesses who were not allowed to be cross-examined, could the authorities ever have embarked on and concluded any penalty adjudication proceedings for its ‘improper importation’ under Section 112(a) of the Customs Act, 1962? There are, to be sure, other issues that arise, implicit or embedded in this question. 2. Having heard learned Counsel on both sides, we are not in the least satisfied that the impugned order can be sustained. The absence of an essential component for penalty adjudication proceedings — the contraband itself — is sought to be substituted by conjecture: ‘it must have existed’. Worse yet, the value of the contraband remains unknown to this day, and it is on the rankest speculation, and on one astonishing statement by one officer who plays a central role, viz., that his ‘experience’ when once he claimed to have ‘held’ the contraband allowed him to depose to its aggregate value, that the entire edifice of the order is founded. If once there was a ‘witch-hunt’ against this officer, as he contends, it rather seems to us to now be full-tilt in reverse, with the authorities grasping at any straw. We do not believe that the provisions of the Customs Act, given their ambit, purpose and scope, can be interpreted in this fashion. If once there was a ‘witch-hunt’ against this officer, as he contends, it rather seems to us to now be full-tilt in reverse, with the authorities grasping at any straw. We do not believe that the provisions of the Customs Act, given their ambit, purpose and scope, can be interpreted in this fashion. The interpretation is not just ‘liberal’, itself impermissible in a statute of this sort. It is a formless, elasticised interpretation that is adopted, one entirely unknown to our jurisprudence, founded on nothing but inference, surmise and supposition, not evidence. Even in the narrative to which we have earlier referred there are certain inflexion points that give us pause. These speak to inexplicable — and unexplained — conduct at the time in question, of the clearest evidence-harvesting opportunities squandered, or missed, or allowed to be lost. Today, these holes and gaps in the Customs’ case are sought to be covered up by obtuse and oblique inferences and suggestions. This is not a case of circumstantial evidence. It is a case of no evidence at all sought to be supplanted by argument and supposition. A statute like the Customs Act is founded on evidentiary certainty. That fundamental cannot be jettisoned under any circumstances. 3. There is a popular impatience with the slowness of the legal process, the uncertainty of the outcome, and there is a corresponding popular perception that the guilty go free. We are unconcerned with these popular perceptions. We are concerned only with the rule of law, and its demand for certainty. We hold no candle for those who stand charged. Whatever be the public’s perception or understanding of these persons, we direct our attention to how the authorities amenable to our jurisdiction conducted themselves. This is where we depart, and depart most determinedly, from the pot-boiler trajectory of the narrative and its parallels to cinema and fiction. We do not, and cannot, endorse the view that because of the glacial pace of the legal system — this case has been nearly three decades in the making — it is perfectly all right for courts to endorse actions beyond the frame of the law. No amount of dashing derring-do will substitute for evidence or excuse a departure from the rigours of the law’s mandated processes. No amount of dashing derring-do will substitute for evidence or excuse a departure from the rigours of the law’s mandated processes. The consequences would, otherwise, be appalling: every one of us might then be subjected to the most hideous penalties with no protection from the law. More than the adage of it being preferable that nine guilty persons go free than one innocent be punished, we are mindful of the 2000 year old saying attributed to Cicero: legum servi sumus ut liberi esse possimus: “in the end, we are all slaves to the law so that we may be free.” 4. For the reasons that follow, we have allowed all five appeals, and set aside the impugned orders. B. FACTUAL BACKGROUND 5. The appeals all challenge the order and judgment dated 13th December 2004 of the Customs, Excise & Service Tax Appellate Tribunal (“CESTAT”, “the Tribunal”), West Regional Bench, at Mumbai, dismissing the Appellants’ appeals, five in all (Appeals Nos. C/28 to C/32 of 1995).Those appeals came up from an order-in-original dated 14th October 1994 passed by the 2nd Respondent, the Collector of Customs (“the Collector”) (Order in original No 15/Cus/Goa/94).The Collector’s order is also under challenge. The CESTAT upheld the Collector’s order. 6. The present appeals were admitted on 14th March 2005 on a substantial question of law framed thus: Whether in the facts and circumstances of the case the findings imposing penalty rendered by the Commissioner of Customs-Respondent No.1, and CESTAT are perverse as they are based on the statements of three eye witnesses to the incident, viz., Vincy, Baptista and Sebastian, who were not allowed to be cross-examined by the Appellant? 7. As we have noted, there are other subsidiary questions implicit in this question of law, and we will identify and address those as well. 8. First, as to the Appellants. Churchill Braz Alemao is a former Chief Minister of Goa. Ciabro and Joaquim are his brothers. There was another brother, Alvernaz; his death on 16th May 1991 is part of this saga. Anthony John Rodrigues worked for Alvernaz. Subhash Pandey was employed by a company engaged in the construction of the Varca Beach Resort. 9. Varca is a census town in the South Goa district. It lies on the western sea front, south-west of the city of Margao, the town of Benaulim and directly south of Colva. Anthony John Rodrigues worked for Alvernaz. Subhash Pandey was employed by a company engaged in the construction of the Varca Beach Resort. 9. Varca is a census town in the South Goa district. It lies on the western sea front, south-west of the city of Margao, the town of Benaulim and directly south of Colva. The port of Mormugao is to the north; Panjim is further north. Varca enjoys splendid beachfronts and is today a popular holiday destination with several hotels and resorts. To its south is the beach of Fatrade. The beaches of Colva, Varca and Fatrade are broad and pristine, and at the time when our story opens, these were not yet as developed or tourist friendly as they are today. Between the burgeoning township of Margao and Varca/Fatrade lay sleepy hamlets with narrow village roads, some of which meandered to the beaches and seashore. 10. In the summer of 1991, Costao Fernandes (“Fernandes”), an Intelligence Officer attached to the Rummaging and Intelligence Wing of the Customs House at Mormugao, is said to have received credible information that the Alemao brothers, including Churchill, and their associates were likely to smuggle into the country a huge quantity of gold. Fernandes’ information was that this contraband would likely be unloaded at Varca Beach at some time in the month of May 1991. The Superintendent of Customs (R&I) directed Fernandes to track developments. The actual date of this anticipated smuggling was unknown. Fernandes maintained a nightly vigil at Fatrade beach near the construction site of the Varca Holiday Beach Resort, a project being undertaken by the Alemaos. 11. On 15th May 1991, Fernandes hid his motorcycle in some shrubbery and went on to a vantage point near the beach. Construction was on even at night. The site was lit. At about 8:30 pm, in Fernandes’ telling of it, he saw Joaquim Alemao, Ciabro Alemao and Alvernaz Alemao arrive at the site. At about 11 pm, Joaquim and Ciabro Alemao went towards the sea. They returned, and left the site in their vehicles. Anticipating a return, Fernandes stayed on site. Dawn broke; the morning of 16th May 1991. Fernandes presumed that the possibility of contraband being smuggled during daylight was remote. He left for his residence at around 8 am on the fateful morning of 16 May 1991. 12. They returned, and left the site in their vehicles. Anticipating a return, Fernandes stayed on site. Dawn broke; the morning of 16th May 1991. Fernandes presumed that the possibility of contraband being smuggled during daylight was remote. He left for his residence at around 8 am on the fateful morning of 16 May 1991. 12. Fernandes is on record to say that later that very morning, at about 11 am, he received a tip-off at his residence of some suspicious activities involving the Alemaos at the Fatrade/Varca Holiday Beach Resort site. He rushed back. There, he claims he saw a white Contessa no GA-02A-4567, a blue Maruti motor car no DAC 5942 and a black Fiat car at the site. The cars all had dark tinted glasses. 13. Fernandes claims he saw Ciabro Alemao and two ‘canoes’ with outboard motors approaching Carmona Beach from the high seas. At noon, the canoes touched shore. Each carried four or five persons. They were offloading boxes that looked like heavy-duty vehicle batteries from the canoes. These were apparently of some weight, and had to lifted with bamboo poles and oars. Fernandes recognized Alvernaz Alemao driving the Contessa. Four of the five battery boxes were placed in that car’s boot. The fifth went into the blue Maruti. Once all the boxes were loaded, Alvernaz drove off in the Contessa. 14. Fernandes gave chase on his motor cycle, careening down the narrow village roads in pursuit. Along the way, Fernandes seems to have been able to pass on to a good Samaritan a chit containing the Mormugao Customs House number with a request to deliver it to his wife at his residence. He resumed his pursuit of the Contessa. It was forced to slow behind a heavier vehicle; there was not enough room for the Contessa to pass. Fernandes sped past the car, swerved in front of it, and tried to block it. He called out to Alvernaz, who, recognizing Fernandes, accelerated and tried to run him over. Fernandes vaulted off his motorcycle. The Contessa rammed into it and mangled it. The two vehicles were damaged, and entangled. Fernandes opened the car door and prevented Alvernaz from driving away. They struggled over control of the car. It went off the road. Fernandes said later that Alvernaz admitted there was contraband gold in the boot. He tried to bribe Fernandes with Rs. The Contessa rammed into it and mangled it. The two vehicles were damaged, and entangled. Fernandes opened the car door and prevented Alvernaz from driving away. They struggled over control of the car. It went off the road. Fernandes said later that Alvernaz admitted there was contraband gold in the boot. He tried to bribe Fernandes with Rs. 20 lakhs and a share of the booty. Fernandes would have none of it. For some reason that is still unclear, Fernandes then got into the car with Alvernaz. There was a scuffle and a knife-fight. Fernandes himself was apparently injured — 22 times. Alvernaz was grievously wounded. He fell half out of the car. Fernandes then claims to have opened the boot of the Contessa. After rummaging through the boxes, he claims to have removed what was, in his opinion, a gold biscuit or bar. He claims he displayed it to the public that had by then gathered around the vehicle. He declared it to be smuggled gold. Fernandes said he was refused assistance by the locals in safeguarding the contraband. He saw a motorcycle approaching. Fearing this to be an Alemao accomplice, he fled the scene after deflating two of the Contessa’s tyres. He left Alvernaz, wounded and bleeding, and the contraband unguarded. There seems to have been a police station not far away. We do not know why Fernandes did not seek aid there. There is also some telling of Fernandes, still injured, then swimming across a river and losing his clothing in the process. Nothing turns on either of these facts for our present purposes and so we press on. 15. At about 1:00 pm, the Customs Office at Mormugao received a telephone call from Fernandes’ wife saying her husband had detained a vehicle with contraband goods near the Ramada Hotel at Varca. The Customs staff rushed to Varca at around 1:45 pm, to find the Contessa parked off the road at Gunneavaddo. There was no one in the car. There was nothing in the boot, which had been left open. 16. Subsequent investigations made the claim that Joaquim Alemao, Ciabro Alemao, Reginaldo Rodrigues, Romeo, Roy Miranda, Anton Fernandes, and others came to the spot where the Contessa was, opened its boot, removed the gold and took it away. Churchill Alemao took Alvernaz to Dr. Maurito Rock Furtado’s home in Varca. Alvernaz died there. 17. 16. Subsequent investigations made the claim that Joaquim Alemao, Ciabro Alemao, Reginaldo Rodrigues, Romeo, Roy Miranda, Anton Fernandes, and others came to the spot where the Contessa was, opened its boot, removed the gold and took it away. Churchill Alemao took Alvernaz to Dr. Maurito Rock Furtado’s home in Varca. Alvernaz died there. 17. On 7th June 1991, the CBI registered a crime against Costao Fernandes for murdering Alvernaz. 18. On 20th December 1991, the Collectorate of Customs and Central Excise, Goa, issued a show cause notice to the present Appellants for personal penalty and confiscation of the two vehicles and motor scooter. The Alemaos responded on 20th December 1991. On 4th May 1992, they requested cross-examination of 38 witnesses. Only 11 were produced. 19. In 1994, a Customs Case was filed against the Appellants before the Chief Judicial Magistrate for offences punishable under Section 135(1)(i) of the Customs Act, read with Section 3 of the Import and Export Control Act, 1947 and Sections 186, 201, 206, 379 and 120(B) of the Indian Penal Code. 20. On 6th August 1994, the Sessions Court, North Goa, framed charges against Fernandes under Section 302 of the Indian Penal Code for the murder of Alvernaz Alemao. 21. Between September and October 1994, the Appellants filed written submissions and application for production of witnesses before the Department of Customs for cross-examination, leave to lead evidence and for leave to produce official reports of proceedings filed by the CBI against Fernandes. 22. On 14th October 1994, the Collector of Customs issued an order holding the Appellants guilty of smuggling gold and imposed fines of: Rs 15 lakhs on Ciabro; Rs. 30 lakhs on Joaquim; Rs. 50 lakhs on Churchill; Rs. 1 lakh each on Roy Miranda and Anton Fernandes; Rs. 50,000/- on Anthony Rodrigues; and Rs. 5 lakhs on Subhash Pandey. The Collector also ordered the confiscation of the Contessa, the Maruti and the Scooter. The Appellants filed an appeal to the CESTAT on 20th January 1995. 23. Fernandes, still facing criminal prosecution, claimed protection under Section 155 of the Customs Act. The Session Court rejected the application on 8th June 1995. Fernandes filed a Criminal Revision Application to this Court. That was dismissed on 20th October 1995. Fernandes filed a Special Leave Petition. On 20th February 1996, the Supreme Court granted leave, and quashed all proceedings against Fernandes. The Session Court rejected the application on 8th June 1995. Fernandes filed a Criminal Revision Application to this Court. That was dismissed on 20th October 1995. Fernandes filed a Special Leave Petition. On 20th February 1996, the Supreme Court granted leave, and quashed all proceedings against Fernandes. We will return to this decision momentarily. 24. On 31st October 2000, the Chief Judicial Magistrate discharged all the Appellants in the Customs Case. The Union of India filed a Criminal Revision Application No 8 of 2001, which this Court dismissed on 17th July 2003 (Union of India v Churchill Alemao, (2009) 245 ELT 137).The Union of India filed a Special Leave Petition, and that came to be dismissed on 16th April 2004. 25. On 13th December 2004, the CESTAT passed the impugned order, dismissing the Appellants appeals. On 3rd January 2005, the Deputy Commissioner of Customs (Preventive), Custom House, Mormugao, Goa, served letters on the Appellants under Section 131 of the Customs Act, 1962, calling upon the Appellants to pay the penalties. A detention notice followed on 1st February 2005. These appeals were filed on 14th February 2005 and admitted a month later on 14th March 2005. 26. From this narrative, it is clear that by the time the CESTAT passed its order of 13th December 2004, two things had come to pass; (i) Fernandes had finally obtained a quashing of the murder or homicide case launched by the CBI; and (ii) the Customs Case filed against the Appellants had failed all the way to the Supreme Court. Of course, the principal reason for the latter, the dismissal of the Customs Case, is that the contraband in question was not produced at all. As we shall see, this is pivotal to the present case, for this lacuna continues, and is sought to be covered up by a reliance on some observations of the Supreme Court in Fernandes’ entirely separate case regarding the homicide charges against him. C. QUESTIONS RAISED 27. The substantial question of law framed at the time of admission, read in context, throws up subsidiary questions that must be addressed. (a) Can a penalty of improper importation of goods under Section 112 (a) and (b) be imposed without any chemical, physical, or metric examination or actual seizure/confiscation of the alleged contraband gold? C. QUESTIONS RAISED 27. The substantial question of law framed at the time of admission, read in context, throws up subsidiary questions that must be addressed. (a) Can a penalty of improper importation of goods under Section 112 (a) and (b) be imposed without any chemical, physical, or metric examination or actual seizure/confiscation of the alleged contraband gold? (b) Could the Tribunal legitimately have relied on Section 138B of the Customs Act and applied it to departmental adjudication proceedings when the section specifically and clearly applies only to prosecution for offences under the Customs Act? (c) Could the CESTAT have used the observations of the Supreme Court in Fernandes’ homicide case (Criminal Appeal No. 242 of 1996) to which the Appellants were not parties, and in which the question of alleged smuggling was at best part of the factual narrative, to substitute as actual proof of contraband, and to make up for the non-availability of the contraband? (d) Could the CESTAT have given any credence to retracted statements under Section 108 of the Customs Act, in absence of cross examination of the absconding witnesses? Does this amount to a violation of principles of natural justice? (e) Could the sole testimony of Fernandes and his ‘estimation’ of the quantity and quality of the alleged contraband at Rs. 8 crores suffice as proof of the alleged contraband’s value? D. THE EVIDENCE ON RECORD 28. The Collector relied on statements recorded under Section 108 of the Customs Act. The following table represents the statements recorded of the individuals and whether they have been cross-examined. 8 crores suffice as proof of the alleged contraband’s value? D. THE EVIDENCE ON RECORD 28. The Collector relied on statements recorded under Section 108 of the Customs Act. The following table represents the statements recorded of the individuals and whether they have been cross-examined. Sr No. Date Recorded statement under Section 108 of the Customs Act Cross examination conducted 1 25 May 1991 Costao Fernandes Yes 2 22 August 1991 Gurudas Naik Yes 3 5 June 1991 Lily D’Silva Not attended 4 29 May 1991 Sharanappa Mallappa Padagad’s Not attended 5 30 May 1991 Mallappa Bramappa Mather Not attended 6 21 May 1991 and 9 July 1991 Vincy Soares Undelivered summons 7 31 July 1991 Alex Rasquinha Yes 8 13 July 1991 Baptista Fernandes Undelivered summons 9 17 July 1991 Sebastiao Sagrade Fernandes aka Seby Fernandes Undelivered summons 10 25 June 1991 Joao Minguel Luis Yes 11 29 June 1991, 4 July 1991, 31 July 1991, and 21 August 1991 John Arcanjo Rebello Yes 12 8 August 1991 Antonio Maurlio Rock Furtado Yes 13 7 July 1991 and 12 July 1991 Veny Fernandes Yes 14 8 July 1991 Francis Correia Yes 15 3 July 1991 and 25 July 1991 Quiteria D’Silva Not attended 16 3 July 1991 Treza Mergulhao Not requested for cross examination 17 3 July 1991 Shalini Peter Not attended 18 3 July 1991 Eknath Verenkar Not attended 19 8 June 1991 H. Padmanabha Pai Not attended 20 6 July 1991 Cruz Rodrigues Yes 21 2 July 1991 Sergio Almeida Yes 22 13 June 1991, 22 August 1991, and 29 August 1991 Churchill Alemao Accused 23 11 June 1991, 19 June 1991, 26 July 1991, 30 July 1991, and 1 August 1991 Joaquim Alemao Accused 24 10 June 1991, 13 June 1991, 15 July 1991, 19 August 1991, and 22 August 1991 Ciabro Alemao Accused 25 30 August 1991 Anthony John Rodrigues aka Reginald Rodrigues Accused 26 6 July 1991 Emilia Monteiro Yes 27 29 August 1991 Ashok Bhasin Accused 28 Not interrogated Roy Miranda and Anton Fernandes Absconding 29. Sharanappa, the watchman at Varca Holiday Beach Resort, stated that at about 7 am on 16th May 1991, he saw Joaquim Alemao and Subhash Pandey arrive at the site. Sharanappa, the watchman at Varca Holiday Beach Resort, stated that at about 7 am on 16th May 1991, he saw Joaquim Alemao and Subhash Pandey arrive at the site. Joao Minguel Luis, the owner of Luis Bar, claimed Ciabro Alemao visited him, and was accompanied by others in two to three cars at 11:45 am at the Carmona Beach on 16 May 1991. During his cross-examination at his personal hearing on 7th June 1994, Luis claimed to not remember the exact date of Ciabro Alemao’s visit. Gurudas Naik claimed to have been approached by Fernandes, and given a chit containing the numbers of the Customs Office, Mormugao and he delivered this to Fernandes’ wife. 30. Vincy Soares is one of the witnesses who claims to have seen Joaquim, Ciabro, Reginald, Roy Miranda, Anton Fernandes, among others, arrive at the scene of the accident after Fernandes left. He also claims to have witnessed Joaquim removing a black battery-type box and giving this to Roy Miranda who placed it on his bike. The second battery was allegedly carried by Joaquim, Reginald and a third person unknown to him on another scooter, and they too left towards Fatrade. Baptista Fernandes and Sebastiao Sagrade Fernandes claim to have seen the scuffle between Fernandes and Alvernaz, and identified them despite the dark tinted windows of the Contessa. They reiterated what Vincy Soares said. Veny Fernandes and Francis Correia narrated a similar chain of events. 31. John Arcanjo Rebello said that on 16th May 1991, when he was standing outside Roy Miranda’s house, he saw Gongrette arrive at that house on a scooter. At Roy Miranda’s request, he helped them carry a battery-type box from the scooter to the verandah of the house. He stated he was unaware of the contents. During his personal hearing on 5th July 1994, he claims that on 16th May 1991, and even later, he did not meet Roy Miranda or Gongrette. 32. In his statement, Churchill Alemao said that on being told of his brother’s wounds, he rushed to the spot. He took Alvernaz to Dr. Maurilio Furtado, who declared him dead. He confirmed that Alvernaz took the Contessa to Varca Beach Resort at 11: 30 am that day. Joaquim Alemao confirmed he went to the Varca Beach Resort site at 7:30 am, but said he saw no Contessa, Maruti or any Bullet motorcycle. He took Alvernaz to Dr. Maurilio Furtado, who declared him dead. He confirmed that Alvernaz took the Contessa to Varca Beach Resort at 11: 30 am that day. Joaquim Alemao confirmed he went to the Varca Beach Resort site at 7:30 am, but said he saw no Contessa, Maruti or any Bullet motorcycle. Later, told of his brother’s injuries, he reached the spot and saw Alvernaz being attended to by Dr. Alvaro. He denied forcing open the boot of the Contessa. Similarly, on being told about his brother’s condition, Ciabro too rushed to the spot of the incident. En route, he saw his brothers at Dr. Furtado’s house. He denied that he visited Luis’ Bar on 16th May 1991. E. FINDINGS 33. What, if anything, is to be made of all this? We must be mindful of two cardinal aspects: first, that we are concerned with an adjudication and penalty case; and, second, that we are constrained by a substantial question of law. We are not here to re-appreciate evidence. We can, however, test whether the conclusions drawn in the impugned orders are supported by the material. If not, there is perversity. 34. In summary, the testimony of Sharanappa is that Joaquim was present at the Varca Holiday Resort construction site. Alvernaz’s presence is confirmed by his brother Churchill. Luis said Ciabro was present at the beach, but changed his statement during the personal hearing, and retracted his statement that he was threatened by Ronnie Rodrigues. All that this shows as undisputed, is that Alvernaz and Alemao were at the construction site on 16th May 1991. As against this, the only evidence that canoes approached the shore and something alleged to be contraband was being smuggled was that of Fernandes. It is impossible to conjecture that statements were withdrawn or changed due to influence or pressure. 35. Vincy, Baptista and Sebastiao are the witnesses to whose evidence we must turn, since this is pivotal to the substantial question of law. They claimed that Joaquim broke open the boot of the Contessa and took out the battery-type boxes. They were not produced for cross-examination citing their unavailability. Then John Rebello completely retracted his statement: he denied ever having carried the identified contraband, or being threatened by Roy Miranda or Gongrette. The entire case thus rests on the Fernandes’ wholly uncorroborated testimony. They claimed that Joaquim broke open the boot of the Contessa and took out the battery-type boxes. They were not produced for cross-examination citing their unavailability. Then John Rebello completely retracted his statement: he denied ever having carried the identified contraband, or being threatened by Roy Miranda or Gongrette. The entire case thus rests on the Fernandes’ wholly uncorroborated testimony. Not one of the witnesses have made any mention of the only item in question: the gold biscuits Fernandes said he displayed. That is our only focus, and we are most emphatically not concerned with Costao Fernandes’ moral imperatives or the moral ambiguities of those he accuses. Even the witnesses said to have seen the battery boxes being unloaded from the Contessa boot speak only of two such; Fernandes claims there were four. 36. A Show Cause Notice is issued under Section 124 of the Customs Act before an order of confiscation of goods with an imposition of a penalty. This requires the party to make a representation within a reasonable stated time against the grounds of confiscation or penalty. 124. Issue of show cause notice before confiscation of goods, etc.— No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned, be oral. 37. The Show Cause Notice dated 20th December 1991, required the Appellants, as owners of the vehicles, to show cause against the proposed confiscation of the Contessa, Maruti and the scooter. The reply to the Show Cause Notice dated 27 March 1992 denied all the allegations and requested the withdrawal of the Show Cause Notice. Subsequently, The Collector of Customs by his order dated 14 October 1994 imposed penalties under Sections 112(a) and (b) of the Customs Act. That Section reads: 112. The reply to the Show Cause Notice dated 27 March 1992 denied all the allegations and requested the withdrawal of the Show Cause Notice. Subsequently, The Collector of Customs by his order dated 14 October 1994 imposed penalties under Sections 112(a) and (b) of the Customs Act. That Section reads: 112. Penalty for improper importation of goods, etc.— Any person— (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable,— (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest. (Emphasis added) 38. (Emphasis added) 38. It seems to us self-evident that the fundamental of the Section is the existence of the goods. Now sub-clause (b) speaks of concealing, removing, etc., so we will proceed on the basis that the goods in question need not be in hand, so to speak; they must nonetheless be shown to have existed, and this is a fact that must be proved. Under Section 2(17), examination is defined in relation to any goods to include measurement and weighment thereof. Section 14 of the Act speaks of valuation of goods for assessment of customs duty payable based on the value. The value is determined at the offer or price of sale of the goods ordinarily at the time of export or import. This would, therefore, require measuring the goods, and an assessment of the quantity and quality based on specific metrics. This must apply to confiscation and penalty too. The value, quantity and quality are not matters to be assumed. They are matters of proof in accordance with the statute. Here, the authorities have only assumed that the gold weighed 250 kgs and was of the value of Rs. 8 crores. The only basis of this is Fernandes’ statement that in his vast experience, when he lofted one of the gold bars he (and he alone) claims were there, he estimated its value, purity, weight, and that of the whole cargo. Fernandes also accepted that the presence of gold in the other boxes was unascertainable as did not open these. He extended his assumption to all boxes. There is no valuation report. There is no chemical or other analysis. All we have is Fernandes’ statement. That is all. That is, indeed, the whole of it. Testing gold is a science. It demands a laboratory test and a professional appraisal. 39. Section 111 of the Act lists the goods liable to confiscation. Section 112(a) of the Customs Act, set out above, speaks of an act or such omission that results in the goods liable to confiscation. Section 112(b)(i) stipulates a penalty not exceeding the value of the goods or Rs. 5000/-. Without cogent material of the contraband itself, its value, weight and purity, there is simply no basis for the penalties imposed. 40. Section 112(b)(i) stipulates a penalty not exceeding the value of the goods or Rs. 5000/-. Without cogent material of the contraband itself, its value, weight and purity, there is simply no basis for the penalties imposed. 40. These witnesses did not present themselves for cross-examination: Vincy Soares; Sebastiao Fernandes; Sharanappa Mallappa Padagad; Mallappa Mather; Lily D’Silva; Padmanabha Pai; Shalini Peter; Quiteria D’Silva; Tereza Mergulhao; and Baptista Fernandes. The Collector maintains that the Customs Department made all reasonable efforts to secure the presence of the witnesses. The three witnesses key to our discussion, Vincy Soares, Baptista Fernandes and Sebastiao Fernandes, never received a summons. They were said to be abroad. 41. As to these three witnesses (Vincy, Sebastian and Baptista), and the failure to produce them for cross-examination, the CESTAT relied on their Section 108 statements, but held, in effect, that it was irrelevant that they were not offered for cross-examination. In this, the CESTAT relied on Section 138B of the Customs Act. That Section reads: 138B. Relevancy of statements under certain circumstances.— (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,— (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. (Emphasis added) 42. The CESTAT confused the issues of relevance and proof. A statement may be relevant, but it yet needs to be proved. (Emphasis added) 42. The CESTAT confused the issues of relevance and proof. A statement may be relevant, but it yet needs to be proved. The fact that a statement is made and recorded, and is statutorily said to be relevant, does not mean it is proved. That statement, like all testimony, must be subjected to the rigours of cross-examination, to be drawn into the evidentiary pool to form a basis for reasoning or conclusion. Section 138B does not say, and could not say, that statements can be taken as proved even without cross-examination. This, however, is how the CESTAT has misunderstood the section. All that the section says is that for want of production of a witness, his Section 108 statement does not automatically cease to become relevant. Questions of relevancy and proof are yet determined by the Indian Evidence Act, and the CESTAT wholly failed to take these into account. 43. In Arya Abhushan Bhandar v Union of India, (2002 (143) ELT 25 (SC) it was held that material witnesses not produced for cross-examination, though asked for, amounts to a clear breach of natural justice. In Union of India v TR Varma, [1958] 1 SCR 499) in paragraph 10, the Court held : “it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.” 44. The Tribunal placed reliance on Cyrus Nazar Kolah v Union of India, (1988 (19) ECR 253 (Bombay) in which there were simultaneous criminal and customs proceedings. The appellant had been discharged by the magistrate. He sought quashing of the customs penalty. The Tribunal drew support from a finding that of the High Court that the mere fact that the petitioner was acquitted by the magistrate in a criminal case is not enough to hold that penalty imposed in the departmental proceeding cannot be sustained. However, the Tribunal did not consider the judgment in its entirety or in its correct perspective. The Tribunal drew support from a finding that of the High Court that the mere fact that the petitioner was acquitted by the magistrate in a criminal case is not enough to hold that penalty imposed in the departmental proceeding cannot be sustained. However, the Tribunal did not consider the judgment in its entirety or in its correct perspective. What the Court held was that a penalty could not be imposed by relying only on the statement of one person who was unavailable to ascertain the correctness of that statement. “In these circumstances, it is difficult to uphold the orders passed by the three authorities below imposing penalty on the petitioner. I wish to make it clear that I am not holding that in no case the penalty can be imposed unless person, on whose statement reliance is placed, is produced for cross-examination but on the facts and circumstances of the present case, it will have to be held that the order of penalty is not accurate.” The petition succeeded. The orders passed by the three authorities were set aside and the deposited amounts were refunded. This case is hardly of any support for the CESTAT’s view. 45. In Krishan Dayal v Chandu Ram (1969) ILR Delhi 1090), it was held that a statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. Further, every case should be viewed individually. The Court mentioned factors that ought to be considered: the nature of the testimony, its probative value, the status of the witness, the relationship or connection with the parties, and any other factor touching the credibility of the witness. It was also held that the Court may also choose not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. 46. Where does the CESTAT derive the basis of its order? It was also held that the Court may also choose not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. 46. Where does the CESTAT derive the basis of its order? This is the 20th February 1996 judgment of the Supreme Court quashing the prosecution against Costao Fernandes for the murder of Alvernaz Alemao (Costao Fernandes v The State, etc., (1996) 7 SCC 516 ).The Supreme Court lauded Fernandes’ efforts against smugglers in the larger interest of society. In its judgment, the Supreme Court did not, and could not have, pronounced on the factum of smuggled gold. The issue before the Supreme Court related to the protection afforded by Section 155 of the Customs Act. There was no finding returned of the existence of the contraband, or its value. The only point in issue was whether Costao should face the criminal prosecution or whether he was afforded protection by Section 155. This could not aid the CESTAT in its findings in an entirely distinct confiscation and penalty case. The CESTAT, instead of appreciating this entirely self-evident position, proceeded to hold that the Supreme Court in the Costao Fernandes case before it had found there to be smuggled gold, and therefore nothing remained to be established. 47. What the Supreme Court said was actually this: 8. None of the aforesaid has legs to stand, as would appear from what is being stated later. A biased investigation of the type at hand from the CBI has indeed pained us, because people of this country have still high hopes from it, which would get dashed if bias creeps in its investigation. But then, the deceased was no ordinary mortal, as he was a brother of the one time Chief Minister of Goa; and the occurrence had taken place in Goa. 9. What finds the appellant before this Court is denial of the protection made available by Section 155 of the Customs Act, 1962 (the Act).... ... 17. The Additional Solicitor General has another submission to make. The same is that being faced with an organised underworld of smugglers, the appellant should have remembered that “discretion is the best part of valour”. If the appellant would have done so, he would have perhaps saved his skin, but could not have saved the larger interest of the society and nation, which does lie in preventing smuggling. The same is that being faced with an organised underworld of smugglers, the appellant should have remembered that “discretion is the best part of valour”. If the appellant would have done so, he would have perhaps saved his skin, but could not have saved the larger interest of the society and nation, which does lie in preventing smuggling. The appellant showed valour not in taking to heels, but in fighting. We have all praise for such an officer and we would not allow him to be prosecuted, much though the smugglers would want it to be so. Indeed the appellant is being persecuted, not prosecuted, as the action smacks of revenge seeking to take his life because he has taken the life of a smuggler; of course, one close to political high-ups of Goa. Let this not be countenanced. Let this head-hunting be not permitted. 18. The prosecution against the appellant is, therefore, quashed. The appeal stands allowed accordingly. (Emphasis added) 48. This clearly has nothing to do with the universe of adjudication and penalty. Yet, the Tribunal would have us believe that the Supreme Court ‘concluded’ that there was gold worth Rs.8 crores in the car Fernandes intercepted; and that the Supreme Court was ‘satisfied’ with the presence of gold in the battery-type boxes in the Contessa’s boot. That question was never before the Supreme Court for decision. 49. The CESTAT approached the matter thus: 24. We have heard both sides extensively. There is no gainsaying the fact that the evidence in this case is only circumstantial. ... ... 25. The circumstances under which the battery type boxes were removed clearly indicate that the boxes contained something very valuable. Nobody would have bothered to remove some trash from the dickey in such a hurry when a grievously injured person was lying in the front seat of the car. It still remains to be seen whether the boxes contained gold. The Commissioner relied on the version given by Costao that he had opened one of the battery type boxes, took out a gold biscuit and showed it to the crowd. He also relied on the statement of Costao where he narrated the conversation between him and Alvernaz. The latter seemed to have said that he was carrying gold and that he was prepared to share it with Costao. He also relied on the statement of Costao where he narrated the conversation between him and Alvernaz. The latter seemed to have said that he was carrying gold and that he was prepared to share it with Costao. The Supreme Court also believed that gold worth Rs.8 crores was being smuggled in the car. The evidence before the Apex Court is no better or worse than what we have before us in this regard. It is therefore safe to rely on the findings of the Apex Court that the car was carrying gold.” 50. As an instance of completely and materially misdirecting itself, it is difficult to conceive of a better instance than this. The CESTAT was right in this much: that the question of whether the boxes contained gold was at large. But that question was not concluded because the material before the Supreme Court and the CESTAT was the same. The two cases were different, and the Supreme Court was not hearing a customs case or a penalty case; had it been, then the lack of evidence before it (as before the CESTAT) would have engendered another result. What the Supreme Court was hearing was a case about the prosecution of Fernandes, and his claim to immunity under Section 155. 51. Indeed, there is material in the narrative that this very lack of material in the context of a Customs Case, did not move the Supreme Court to hold as the CESTAT now has. Consider, first, the findings of this Hon’ble Court in the Criminal Revision Application No 8 of 2001: Union of India v Churchill Alemao ((2009) 245 ELT 137 : 2003 SCC Online Bom 1294).There, this Court said: 4. The learned Trial Court discharged the Complainant/Accused on the grounds:— (i) that the prosecution had not been able to establish that the said two Cars namely the Contessa Car and the Maruthi Car belonged to the Accused. (ii) there was no evidence to even prima facie indicate that the boxes in the said Contessa Car contained gold biscuit. (iii) P.W. 5, Costao Fernandes, had not given the details of the markings which he had noticed on the alleged gold biscuit to show that gold was smuggled and brought to India by sea. (ii) there was no evidence to even prima facie indicate that the boxes in the said Contessa Car contained gold biscuit. (iii) P.W. 5, Costao Fernandes, had not given the details of the markings which he had noticed on the alleged gold biscuit to show that gold was smuggled and brought to India by sea. (iv) there was no corroboration from the witnesses examined by the Complainant to corroborate the statement of P.W. 5, Costao Fernandes, that he had shown one gold biscuit to the persons who had assembled at the spot. (v) the evidence of P.W. 4, Vincent Soares, was not corroborated by any other witness. (vi) that no seizure has been effected to prima facie prove that gold was smuggled and the same was found in the possession of the Accused, (vii) there was a contradiction in the evidence of P.W. 4, Vincent Soares and P.W. 5, Costao Fernandes, regarding the number of boxes that were found in the trunk compartment of the Contessa Car. P.W. 4, Vincent Soares, had stated that two boxes had been removed whereas according to P.W. 5, Costao Fernandes, there were four boxes. (Emphasis added) 52. A Special Leave Petition from this order was dismissed. Therefore, with material that is “no better or worse” than the CESTAT had, the Supreme Court in the Customs Case Special Leave Petition did not arrive at a conclusion that the Customs Case had any merit, or that the discharge of the accused, Churchill, was unwarranted. That order of the High Court has attained finality. Its findings are directly relatable to the ones raised here; and yet the CESTAT chose to ignore them. Almost exactly the same considerations as arose in the Customs Case arise here; and there is today no better answer than there was in 2003. 53. In Quinn v Leathem ([1901] AC 495; See also The State of Orissa v Sudhansu Sekhar Misra and Ors., AIR 1968 SC 647 )Lord Halsbury famously said: “that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.” (Emphasis added) 54. In Union of India and Ors v Dhanwanti Devi and Ors (1996) 6 SCC 44 ) it was held that the only thing in a decision that binds a party is the principle upon which the case is decided and that it would not be profitable to extract sentences from a judgment and build upon it. The essence of a decision is its ratio and not its every observation. A binding precedent is the question the court actually decides. 55. The contention of the Learned Counsel for the Appellants that Section 138(B) of the Customs Act applies only to prosecution of offences under the Customs Act and not to departmental adjudication proceedings is not well-founded. A bare perusal of Section 138(B)(1) (set out above) tells us otherwise. It is not possible to hold that the word ‘proceeding’ excludes departmental adjudication proceedings. Indeed, even the CESTAT did not think so, and we see no reason to consider this plea now. 56. Consequently, if there were gaps, retractions and inconsistencies, and even if the Section 108 statements of the three witnesses (Vincy, Sebastian and Baptista) were relevant, those statements demanded proof and corroboration. They could not, on their own, and without the witnesses being made available for cross-examination, survive the tests we demand of proof. F. THE INAPPROPRIATE LANGUAGE OF THE CESTAT ORDER 57. The language of the CESTAT order is to be deprecated. We do not appreciate its tone or tenor, and even less its palpable derision and condescension. Take paragraph 3 of that order: “3. Churchill Alemao started his life as a tea-boy and rose to become the Chief Minister of Goa. Democracy at its very best.” 58. We fail to understand what, if anything, this is supposed to mean. That those who stand for elections and rise to the highest echelons of political prominence should be only the elite? Or that no tea-vendor may so aspire? We dare say the CESTAT member who wrote this would be rather more reticent today. That statement says far more about the writer’s complete lack of understanding of the fundamentals of a democratic republic governed by the rule of law than he imagines. 59. Or that no tea-vendor may so aspire? We dare say the CESTAT member who wrote this would be rather more reticent today. That statement says far more about the writer’s complete lack of understanding of the fundamentals of a democratic republic governed by the rule of law than he imagines. 59. It does not end there. Fernandes is described as a ‘lone ranger’ and a ‘one man army’. This is law, not a film script. Then, in paragraph 8, a conclusion is reached before the facts are marshalled. And then this, in paragraph 10: 10. Costao intercepted the car at Varca village, jumped into the front seat and requested the driver, Alvernaz, to stop the vehicle (such politeness). The latter did not oblige, there was a scuffle, a knife was pulled by Alvernaz and in the ensuing struggle, Alvernaz was grievously hurt. The officer took out the ignition key, opened the dickey, managed to open one of the battery type boxes, pulled out a gold biscuit, showed it to the crowd which had gathered there by then and requested for help and for some water. Neither of which was given. So he threw the gold biscuit back into the dickey, locked it, deflated the tyres of the vehicle, threw the key away, and walked away in his bloodstained clothes in the general direction of one Mrs Antoinite’s house (these customs officers live rather dangerously). Meanwhile, Alvernaz was wasted. (Emphasis added) 60. In paragraph 14, the CESTAT describes Fernandes’ prosecution as a ‘side-show’. 61. This is not the language of the law. It is not what we expect — no, demand — from Tribunals in our jurisdiction. This case had nothing that justified this sneering, sniping superciliousness. Sobriety is everything in matters like this, and to use language of this stripe trivializes something fundamental. G. THE COSTAO NARRATIVE 62. Costao Fernandes’ narrative, often repeated, has survived, but without any close scrutiny. In our view, it raises very many questions — none related to his integrity — and furnishes few answers. We do not know, given the time-lines, how and when Fernandes managed to find what the CESTAT calls a ‘Good Samaritan’, write out a message on a chit (while on a ‘motor cycle hurtling’) and give it to this Samaritan with a message. We do not know, given the time-lines, how and when Fernandes managed to find what the CESTAT calls a ‘Good Samaritan’, write out a message on a chit (while on a ‘motor cycle hurtling’) and give it to this Samaritan with a message. We do not know why Fernandes, having managed to halt the Contessa, chose to get into it, rather than pull Alvernaz out of it. We do not know why Fernandes did not head to the Customs Headquarters: he disappeared for two days, and is said to have swum across a river to Betul. If the Contessa was mangled by its collision with the motorcycle, what need was there to deflate its tyres? If there was no need, and the car was still operational, why did Fernandes not use it to move himself, Alvernaz (clearly in need of medical attention) and the contraband he said was in the boot to the nearest police outpost (one that could not have been very far off, for the police arrived in three-quarters of an hour). There are several other inconsistencies in the Customs’ case, but these are certainly questions that arise in Fernandes’ account. As we have said, we will not question his valour or virtue. What we do, however, question very much is the CESTAT’s acceptance of this narrative wholesale and without question, and its subsequent acceptance as ‘proof’ and ‘evidence’ of statements of the three witnesses never produced for cross-examination. In our considered view, there is no substitute for evidence and proof, and no amount of pungent story-telling can make up for it; nor is it permissible to borrow selectively and out-of context from one order while ignoring another that is much closer to the issues at hand, or to misread and misunderstand the purport of a statute. H. CONCLUSIONS & ORDER 63. For the foregoing reasons, all the appeals succeed and are allowed. The orders dated 14th October 1994 and 13th December 2004 are quashed and set aside. No costs.