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TMI Blog1990 (6) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... position of personal penalty of Rs. 25.000/- on the appellant Shri Abdulla K. Munshi [appellant in appeal CD (Bom) 223/86]. 2. On information received that one Mr. Gulam Hussain Ismail Parekh of Gloucester, U.K., a British-national, had smuggled Vitamin B-12 powder and was to transport from Surat to Bombay, the officers of D.R.I. Surat maintained a watch at Surat Railway Station, when on the midnight of 26/27-10-1982 they located the said Parekh at the railway station. He was intercepted. On search of his baggage he was found to have possessed 4.900 Kg of Vitamin B-12 powder. On enquiry he could not produce any documents showing the licit import of the same. On recording of the statement of Mr Parekh, he admitted to have smuggled the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.00 lac, whereas Shri Munshi was ordered to pay a personal penalty of Rs. 25,000/-. The present appeals are against the order of the adjudicating authority. 3. Shri H.G. Mehta, the learned advocate for the appellant Shri Abdulla K. Munshi, submitted that there is no ground to hold the appellant as involved in the smuggling of the seized consignment. In his submission, Shri Munshi is implicated only because it was through him that Shri B.C. Shah was introduced to Shri Parekh. He also submitted that a reference is made in the order that on earlier occasion vitamin B-12 powder was smuggled by Shri Parekh and it was delivered to Shri B.C. Shah through Shri Munshi. In his submission, however, the show cause notice pertains to the seizure made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah. 5. Shri C.P. Arya, the learned SDR, submitted that in the statements recorded under Sec. 108 of the Customs Act, Shri B.C. Shah has clearly admitted that he had ordered for the seized consignment and that Shri Parekh had contacted him after landing at New Delhi. He also stated that as admitted by Shri B.C. Shah himself, even prior to this occasion, he had procured the Vitamin-B-12 powder through him and that there is no indication available to show that at that time the import was a licit one. In his submission Vitamin-B-12 powder was a restricted item under the Policy and could not have been imported under OGL and without holding any valid licence for the same. As regards Shri Munshi, Shri Arya submitted that he was the person who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the past Shri B.C. Shah managed to procure Vitamin-B-12 powder from Shri Parekh through Shri Munshi. This may give room for a doubt that at some stage in the past Shri Munshi might have been involved in passing over such goods. That however is not the subject matter in the notice and no allegation therefore is made in the show cause notice issued and hence that cannot be taken as a criteria for holding the appellant Shri Munshi as liable to punishment under Sec. 112(b) of the Customs Act. The show cause notice is confined to the seizure on 27-10-1982. It therefore appears to be a simple hypothesis beyond the rational limit to hold that Shri Munshi was involved in the smuggling of the seized goods. The imposition of penalty under Sec. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e indicating that he was involved in the smuggling of the seized Vitamin-B-12 powder. The factual position on record, however, when examined raises a grave doubt about the involvement of Shri B.C. Shah with the smuggling of the seized vitamin-B-12 powder. It may be noted here that what we have to examine is the involvement of a person vis-a-vis the seized smuggled item and if that is not established merely because it appears that a person had desired to procure Vitamin-B-12 powder from a foreign country, in itself cannot hold the said person liable to penalty under Sec. 112(b) of the Customs Act unless and until the nexus between the smuggled item and that person is established. 12. Reading the various statements given by Shri Parekh, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of taking delivery at Surat. Now if the goods were specifically brought for Shri B.C. Shah and were meant to be delivered to him at Surat, there was no reason whatsoever for Shri Parekh to contact Rashamwala and through him Shri M.K. Desai even prior to reaching Kathor where possibly the appellant B.C. Shah had to take the delivery. This behaviour of Shri Parekh raises a grave doubt as to whether the Vitamin-B-12 powder seized was really the one which Shri B.C. Shah had desired to procure vide his letter dated 22.7.82. If this was not the item imported for and on behalf of Shri B.C. Shah, Shri B.C. Shah cannot be said to have been involved in the said item and if he is not so involved, imposition of penalty under Sec. 112(b) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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