2014 (1) TMI 793 - AT - Customs

Smuggling of gold - Detention under COFEPOSA - Confiscation of goods - Held that - statement of the appellant and also of the co-accused during investigation given before the customs officers which pointed out towards appellant as the person who played a major role in the smuggling activity - As regards the material discrepancy based on House Airway Bills produced by B. Ramu on 14-09-2001 and supplied to the appellant as part of all the documents collected during investigation, we agree with the argument of Revenue that these documents are not prima facie genuine documents because if it is accepted it would appear that the gold worth Rs.56.27 lakhs each in the two consignments remained concealed and idle for the period of over 2 months in the custody of cargo agents which will not happen in the normal course of smuggling. Further the Master Airway Bills do not show any co-relation to the documents produced though the documents produced show the number of Master Airway Bill. In case of smuggling there is no need to apply the same standard of proof. In this case, statement of the accused is corroborated by statement of others who were involved in the activity - Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy were not the main persons responsible for the impugned smuggling because they had no knowledge of concealment of gold in the goods. The main persons were in fact the Shri. Mohamed Rawthar and the appellant. Shri. Mohamed Rawthar could not be traced and hence proceedings against him is kept in abeyance. The appellant who had knowledge about the said person did not provide any information to trace the said person. There is no reason for giving any benefit to the appellant for having successfully shielded that person - Decided against assessee.

Issues Involved:
1. Involvement in smuggling of foreign marked gold biscuits.
2. Admissibility and reliability of statements and documents.
3. Discrepancies in the timeline of events and documents.
4. Imposition of penalties on the appellant and co-accused.

Issue-wise Detailed Analysis:

1. Involvement in Smuggling of Foreign Marked Gold Biscuits:
The appellant was adjudged to be involved in smuggling two consignments of foreign marked gold biscuits, each weighing 12366.596 grams, concealed in air conditioners and music systems imported as unaccompanied baggage. The baggage declarations were filed in the names of two individuals, whose passports were used to declare the goods. Investigations revealed a network involving multiple individuals, including the appellant, who orchestrated the smuggling activities through a series of coordinated actions and financial transactions.

2. Admissibility and Reliability of Statements and Documents:
The appellant argued that the statements of co-accused Chandramohan, which implicated him, were retracted and thus unreliable. The appellant's counsel cited the Supreme Court decision in Vinod Solanki Vs. UOI to support this argument. However, the Tribunal noted that the retraction occurred seven to eight days after the original statements and after remand to judicial custody, reducing its impact. The Tribunal also highlighted that the appellant's own inculpatory statement corroborated Chandramohan's initial statements. The Tribunal relied on precedents from Surjeet Singh Chhabra Vs. UOI and Naresh J Sukhwani Vs. UOI, which upheld the admissibility of statements given before customs officers.

3. Discrepancies in the Timeline of Events and Documents:
The appellant pointed out a discrepancy, noting that the consignment was booked under House Airway Bills dated 09-06-2001 and 10-06-2001, which contradicted the Revenue's claim that the conspiracy began on 23-08-2001. The Tribunal dismissed this argument, finding the House Airway Bills introduced by B. Ramu to be fraudulent and planted to discredit the Revenue's case. The Tribunal reasoned that it was illogical for gold worth Rs. 56.27 lakhs to remain concealed and idle for over two months, and the Master Airway Bills did not correlate with the House Airway Bills.

4. Imposition of Penalties on the Appellant and Co-accused:
The appellant was penalized Rs. 10,00,000/- in each order, and Chandramohan Rs. 5,00,000/- in each case under Section 112(a) of the Customs Act, 1962. The appellant argued that penalties could not be imposed on abettors when no penalties were imposed on the main persons (Natesan Rajaramu and Santha Padaiyachi Ramaswamy). The Tribunal clarified that these individuals were not the main perpetrators as they were unaware of the gold concealment. The main persons were the appellant and Mohamed Rawthar, with the latter evading capture. The Tribunal upheld the penalties, rejecting the appellant's arguments and the cited case laws as inapplicable to the present facts.

Conclusion:
The Tribunal found no infirmity in the adjudicating authority's order, upheld the penalties imposed on the appellant and co-accused, and rejected the appeals. The judgment emphasized the corroborative nature of the statements and the logical inconsistencies in the appellant's defense regarding the timeline and documents.

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