Mahabir Prasad v. Commissioner Of Cus. (Prev.), I.N.B, Patna

[Order]. - The prayer is for dispensing with the condition of predeposit of penalty amount of Rs. 60,000.00 imposed upon the applicant/appellant.

2. Shri B.N. Chattopadhyay, learned Consultant appearing for the applicant/appellant submits that four gold biscuits were recovered from the person of one Shri Santosh Kumar Rauniyar who in his statement before the Customs Officers deposed that the same were given to him by one Shri Kedar of Nepal for onward delivery to the appellant. As a result, the appellant's premises were put to search. However, nothing incriminating was recovered. He also submits that the authorities below have penalised the applicant/appellant only on the statement of Shri Santosh Kumar Rauniyar, which in any case was subsequently retracted by him. The another ground taken by the authorities below for imposing penalty upon the applicant/appellant is that he failed to appear before the Customs Officers in response to summons issued to him. Clarifying this position, Shri Chattopadhyay argues that the applicant/appellant was operated upon at the material time and he brought this fact to the notice of the Customs Officers along with his Medical Certificate. In any case, it is a well-settled law that non-appearance to summons cannot lead to the inevitable fact of the applicant/appellant being involved in the smuggling activities. He also submits that apart from this, there is nothing on record to reflect upon the applicant's/appellant's involvement. He draws my attention to the Tribunal's decision in the case of Bijoy Paul v. C.C.(P), Calcutta reported in 1998 (28) RLT 646 (CEGAT), wherein the penalty imposed on the basis of the statement of the other co-accused without any independent corroborative evidence, was set aside. He also places reliance on another decision of the Tribunal in the case of Seshmal M. Jain v. Collector of Central Excise, Bangalore reported in (T) wherein the statement by a person from whose possession gold was seized without any other legal evidence, was held as not a sufficient evidence so as to proceed against the applicant/appellant on the charge of contravention of the provisions of Gold (Control) Act. Reliance is also placed upon another decision of the Tribunal in the case of K. Moideen v. Commissioner of Central Excise and Customs, Cochin reported in = 1999 (32) RLT 428 (CEGAT), wherein the penalty under the provisions of Section 112 of the Customs Act was held to be not imposable on the basis of the co-accused's statement involving the applicant in the absence of any other corroborative evidence. In these circumstances, learned Consultant prays for allowing the Application unconditionally.

3. Countering the arguments, Shri J.M. Kenedy, learned JDR appearing for the Revenue, submits that Shri Santosh Kumar Rauniyar had given the detailed address as well as the telephone number of the applicant/appellant. This fact shows that Shri Rauniyar was well-acquainted with the applicant/appellant and had the full details of his whereabouts. It is not a general type of statement made by Shri Rauniyar. He also submits that the confessional statement of Shri Rauniyar is not only implicating the applicant/appellant but implicating himself also and such a statement is admissible as an evidence against the co-accused, as has been held by the Tribunal in the case of Kishan Chand and Others v. Collector of Central Excise, Chandigarh reported in (Tribunal). It was held in the said judgement that confessional statement of the co-accused is relevant if the confessional statement is self-implicatory and also implicates the co-accused. Self-implication on the part of the co-accused guarantees for the truth of the accusation. He also places reliance on the Apex Court's judgment in the case of Naresh J. Sukhawani v. Union of India reported in 1996 (83) E.L.T. 253 (S.C.). In these circumstances, he prays for rejection of the Application.

4. I have considered the submissions made from both sides. I find that the only basis for penalising the applicant/appellant is the statement of the persons from whose possession the gold has been recovered, which is in the nature of a statement of the co-accused. There is no other legal independent evidence on record to corroborate the charges made against the applicant/appellant. I also note that the applicant's/appellant's residential premises were put to search by the Customs Officers, which has not resulted into recovery of any incriminating documents or any other incriminating material against the applicant/appellant. Merely because Shri Rauniyar had disclosed the address and telephone number of the applicant/appellant, the same does not lend support to the Department's charge that the gold biscuits in question were to be delivered to the applicant/appellant. The case-law relied upon by the learned Consultant supports his defence. On the contrary, I find that in the case of Kishan Chand relied upon by the learned JDR, there was a confessional statement which was a detailed statement and was corroborated by the statement of the co-accused, which led the Tribunal to treat the same as a good evidence against the applicant/appellant. Similarly, in the case of Naresh Sukhwani, it is seen that there was other evidence also, which along with the statement given by the co-accused, was held to be sufficient to hold the applicant/appellant guilty. In the instant case, I find that there is nothing except the statement of the person from whose possession gold was recovered. It is a well-settled law that penal proceedings against any person under the Customs Act are in the nature of quasi-judicial proceedings and it is for the Department to establish beyond doubt, and prove by acceptable legal evidence, the charge of contravention. The statement of Shri Rauniyar that the gold biscuits were to be delivered to the applicant/appellant can only raise a suspicion against the applicant/appellant that he was eventually an intended consignee of the gold. Suspicion, howsoever grave, cannot take the place of evidence. I also note that though the impugned order does not give the sub-section of Section 112 under which penalty has been imposed upon the applicant/appellant, but presumably the same has been imposed under the provisions of Section 112(b). The said Section authorises the imposition of penalty on any person who acquires possession of/or 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. In the instant case, the applicant/appellant does not fall under any of the expressions used in the said sub-section inasmuch as the charges against him are that he was yet to take the delivery of the gold biscuits in question. As such, I find that the provisions of Section 112(b) are not attracted in the instant case.

5. In view of the foregoing, I dispense with the condition of pre-deposit of the penalty amount in question. As nothing more is to be argued for the final disposal of the appeal from either side, I take up the appeal itself with the consent of both sides and set aside the impugned Order, in so far as the same imposes the personal penalty on the appellant. The appeal as well as the Stay Petition are disposed of.