1999 (11) TMI 904 - AT - Customs

Summary

Issues Involved:
1. Preliminary objection on limitation.
2. Imposition of penalty on Anil Bachani and Ramesh Bachani.
3. Distinction in penalty between Raju Jain and Lalit Jain.
4. Confiscation of the ship.

Detailed Analysis:

1. Preliminary Objection on Limitation:
The advocates for Ramesh Bachani, Anil Bachani, and Raju Jain raised a preliminary objection that the applications filed by the department under Section 129D of the Customs Act, 1962 were barred by limitation. The Board's order directing the Commissioner to refer the points for determination to the Tribunal was dated 17.7.1998. The first application was filed on 21.8.1998, and two additional applications were filed on 13.1.1999, which was beyond the three-month period specified in Section 129D. The departmental representative contended that the first application was timely and included all respondents, and the subsequent applications were filed out of caution. Eventually, the advocates for the respondents did not press their objection.

2. Imposition of Penalty on Anil Bachani and Ramesh Bachani:
The Commissioner found no case for imposing a penalty on Anil and Ramesh Bachani, noting that their statements were retracted and obtained under duress. The department argued that the Bachanis, being the owners of the office where the gold was delivered, must have been involved, and their low-paid employee, Sitaram, would not have received such a large quantity of gold without their consent. However, the Tribunal agreed with the Commissioner that there was insufficient evidence against the Bachanis. The Tribunal emphasized that suspicion alone is not enough and clear evidence is required. The argument of "vicarious liability" for Sitaram's acts was also rejected, as there is no provision in the Customs law that imposes such liability.

3. Distinction in Penalty Between Raju Jain and Lalit Jain:
The Commissioner imposed a penalty on Raju Jain, finding that he was carrying the gold on behalf of his friend Lalit Jain and was aware that the gold was smuggled. The departmental representative argued that Raju Jain did not stand on a different footing from Lalit Jain and that the distinction made by the Commissioner was unjustified. The Tribunal found that the circumstances of Raju and Lalit Jain were virtually identical and that the distinction made by the Commissioner was not justified. Consequently, Raju Jain was found liable to penalty. However, the application failed because the penalty was sought under Clause (a) of Section 112, which only applies to persons who imported the gold, and not under Clause (b) as it should have been.

4. Confiscation of the Ship:
The departmental representative prayed for an order holding that the ship on which the gold was smuggled was liable to confiscation. However, the Tribunal rejected this plea due to the total absence of any material in the application regarding the confiscation of the ship.

Conclusion:
The applications were dismissed. The Tribunal upheld the Commissioner's findings regarding the lack of evidence against Anil and Ramesh Bachani and the improper distinction made between Raju and Lalit Jain. The plea for confiscation of the ship was also rejected due to lack of evidence.