1998 (3) TMI 231 - AT - Customs

Summary

Issues Involved:
1. Legality of the penalty imposed under Section 112(a) of the Customs Act, 1962.
2. Delay in adjudication proceedings.
3. Control and possession of the premises where the contraband was found.
4. Evidence linking the appellant to the contraband.
5. Legality of passing separate orders for confiscation and penalty.
6. Basis of the adjudicating authority's findings and imposition of penalty.

Issue-wise Detailed Analysis:

1. Legality of the Penalty Imposed under Section 112(a) of the Customs Act, 1962:
The Commissioner of Customs (Appeals) imposed a penalty of Rs. 25.00 lakh on the appellant under Section 112(a) of the Customs Act, 1962, for being involved in carrying and keeping 31 Fax machines liable to confiscation under Section 111(d) of the Customs Act, 1962. The Tribunal found that the role of the appellant in carrying and keeping the contraband was substantiated by statements from various witnesses, including Shri Pyarelal, Shri Bhagwan Das, and Shri Harish, who identified the boxes brought and kept in the premises. Thus, the imposition of penalty was warranted, although the amount was reduced to Rs. 10.00 lakh.

2. Delay in Adjudication Proceedings:
The appellant argued that the decision in the case took seven years and cited precedents where long delays in adjudication led to setting aside penalties. The Tribunal acknowledged the delay but distinguished the case based on the involvement of narcotic drugs, which required detailed investigations. The delay was deemed not so long as to warrant interference in the imposition of the penalty.

3. Control and Possession of the Premises:
The appellant contended that the premises were leased to the Uganda High Commission, and they had no control over the outhouses where the contraband was found. However, the Tribunal noted that the rents were being received by the appellants and that employees of the appellants, including Shri Bhagwan Das and Shri Harish, were involved in transporting and storing the goods. The Tribunal concluded that the premises were under the control of the appellant.

4. Evidence Linking the Appellant to the Contraband:
The appellant argued that there was no evidence linking them to the illegal import of the fax machines. The Tribunal found that the statements of Shri Pyarelal and Shri Bhagwan Das were crucial in establishing that the appellant had transported and stored the contraband. Additionally, the consecutive serial numbers of the fax machines found in Bombay and those at the premises further linked the appellant to the contraband. The onus was on the appellant to prove legal import, which they failed to do.

5. Legality of Passing Separate Orders for Confiscation and Penalty:
The appellant argued against the legality of passing separate orders for confiscation and penalty based on the same show cause notice. The Tribunal held that in the interest of justice, it was necessary to give the appellants an opportunity to present their case. Thus, the legality of passing two orders was upheld in the special circumstances of this case.

6. Basis of the Adjudicating Authority's Findings and Imposition of Penalty:
The appellant claimed that the adjudicating authority relied solely on the statement of Shri G.D. Mehta and ignored other evidence. The Tribunal clarified that the authority considered multiple statements, including those of the appellants, Shri Pyarelal, and Shri Bhagwan Das. The Tribunal found that the facts of the case in their entirety supported the adjudicating authority's findings. The penalty was justified based on the evidence of carrying and keeping the contraband.

Conclusion:
The Tribunal modified the impugned order by reducing the penalty from Rs. 25.00 lakh to Rs. 10.00 lakh and disposed of the appeal accordingly.