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TMI Blog2000 (6) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... amod Kumar Pahwa : Rs. 3 lakhs Shri Mukesh Sethi : Rs. 50,000/- 2. All the appellants have challenged the penalties imposed on them respectively. Since the appeals arise from a common impugned order and the facts are common, the appeals were taken up together for hearing and are being disposed of by this common order. 3. We have heard Shri S.S. Sindhi and Shri Deepak Dhingra, Advocates for Shri J.B. Shah, Shri N. Malhotra, Advocate for Shri Yashpal Wadhera, and Shri Akshay Anand, Advocate for Pramod Kumar Pahawa and Mukesh Sethi. 4. Facts common for deciding all the four appeals are: On the basis of specific intelligence, DRI officers intercepted on 5-8-90 two trucks at the Delhi-UP border. From the examination of the goods carried by the two vehicles, goods of foreign origin, namely 11,172 torches of Chinese origin, 31,944 rolls of Wonder Tape of Taiwan origin and a baggage containing 12 Scotch whisky bottles were found. The goods were found to be concealed under pineapple fruits. The occupants of the trucks could not produce any documentary evidence in support of the legal possession/acquisition/purchase/importation of the goods. The goods along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Pramod Pahwa was escorting the truck on scooter; that Shri Framed Pahwa who was escorting the truck had told him to wait for some time as some person was expected to come and take charge of the goods; that when they were waiting in front of Swaran Cinema, some officers of the DRI had intercepted the truck and had summoned them along with the truck to DRI office in New Delhi; that the examination of the truck resulted in the recovery and seizure of 78 packages containing smuggled torches; that Shri Pramod Pahwa himself could not produce any document regarding the legal importation of the said torches of foreign origin and that the said goods along with the truck were seized by the DRI officers under Panchnama dated 4/5-8-90. The driver of the other truck Shri Virender Singh in his statement dated 5-8-90 stated that the owner of the truck was Sardar Sukhdev and that the owner had handed over the loaded truck to him to take it to Delhi; that the truck was loaded with pineapple and some other illegal goods; that the goods were to be delivered to Ramesh Kumar Wadhera of Sunny Transport Company; that his truck was intercepted by officers of DRI at UP-Delhi border; that he along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay; that he had been running this business for the last four months; that on an average he was getting one truckload of contraband goods per day; that he used to send sale proceeds to his supplier at Kathmandu by Hawala, or the same was collected by some persons as per Yodani's direction; that on 2-8-1990 he had received a phone call from Siliguri that truck No. NLH 8327 was expected to reach Delhi on 4-8-1990 with contraband goods and that another truck bearing No. DEL 6995 was on its way to Ludhiana containing yarn of foreign origin; that he had deputed Parmod Pahwa and he himself had also gone to receive truck No. NLH 8327 at Delhi-UP Border on 3-8-1990 and 4-8-1990 and that he had sent Harpal to Ambala to receive truck No. DEL 6995; that Parmod Kumar Pahwa and he himself could locate the truck NLH 8327 and they had come back to their office and thereafter he had asked Parmod Pahwa to deliver 78 cartons of torches to Mukesh Kumar Sethi at Swaran Cinema on 4-8-1990; that he admitted to the ownership of the seized 78 cartons containing foreign origin torches and 148 packages of Wonder Tapes of foreign origin which were seized by the DRI officers. He also stated that his brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 1 years earlier; that Ramesh Wadhera used to manage to obtain smuggled goods from Nepal and for its transport and disposal in Delhi; that the smuggled goods were mainly torches of Chinese make and toys of Japan and Hong Kong origin; that he used to dispose of torches of Chinese make on commission basis at the rate of 25 paise per piece. In this business Shri Vinay Chopra was his partner; that on 14-8-1990 he had bargained the selling of 78 packages containing 144 pieces of torches of Chinese make belonging to Ramesh Wadhera and for this purpose he had gone to a place near Swaran Cinema, Delhi to take delivery of the goods; that Shri Parmod Pahwa had brought the goods loaded on truck No. DEL 6995; that he did not take delivery of the goods as he became apprehensive after seeing some unknown persons roaming in the area; that DRI officers had shown him one person in the DRI office whom he recognised as Ramesh Wadhera who used to give him torches of foreign origin. He also recognised Parmod Pahwa as the person who was to deliver the torches to him. 7. On the basis of further investigation show cause notices were issued, among others to the four appellants before us asking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -noticees without any documentary evidence. Further, the said co-noticees had also retracted their statements. Besides, the appellant Shri J.B. Shah had in his statement specifically stated that he had never discussed about yarn with Ramesh Wadhera on phone or in any other manner and he had also denied helping Yashpal Wadhera or Ramesh Wadhera in the selling of any goods including smuggled goods. Ld. Counsel therefore submitted that entire finding against the appellant Shri J.B. Shah was based on surmises and unsubstantiated allegations. He also relied on the following case law in support of his submissions : 1999 (97) ECC 294 (Delhi High Court) 1957 (STR) 953 SC Swarn Singh v. State of Punjab 11. Defending the order. ld. JDR submitted that the Department's case was based on the fact of seizure of the smuggled goods and the statements of the persons concerned in the smuggling of the goods and other circumstantial evidence. There was no doubt that the present appellant, among others were part of a smuggling syndicate. Shri Ramesh Wadhera had in his statement admitted to the smuggling of various goods like torches, Wonder Tapes and yarn from Nepal. He had mentioned Shri J.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any other manner. Having regard to these facts, which have not been controverted, we are of the view that the allegations against Shri J.B. Shah of his involvement in the smuggling activity remains unsubstantiated. 13. The penalty imposed on him is therefore, set aside and his appeal allowed. Re : Appeal No. 33/98-NB Yashpal Wadhera v. CC 14. Shri Naveen Mullick, ld. advocate for Shri Yashpal Wadhera adopted the arguments of the Counsel for Shri J.B. Shah on the main allegations against Yashpal Wadhera. ld. Counsel submitted that the allegation against Shri Yashpal Vadhera was that he was to receive the sale proceeds of yarn from J.B. Shah in Bombay. He invites attention to the show cause notice at page 10 where the name of J.B. Shah has been placed along with other co-noticees and in connection with the seizure of torches, Wonder Tapes and Whisky bottles. Since the allegation against Shri Yashpal Wadhera was in connection with the sale proceeds of yarn, which was not one of the goods seized from the two trucks and in relation to which the show cause notices had been initiated, the mere mention by Shri Ramesh Wadhera in connection with certain another transactions in yarn c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esenting Shri Pramod Pahwa submitted that two co-noticees, namely, Shri Mukesh Sethi and Ramesh Kumar Wadhera had retracted the statements given by them as admissions recorded under duress and coercion. Further, Shri Pahwa, even as per the statement given by the other noticees was only a paid employee and he had not claimed the goods. He was also not concerned with the goods in any manner other than that of an employee carrying out the instructions of his employer. He also draw, attention to the fact that penalty of Rs. 3 lakhs imposed on Shri Pramod Pahwa was highly disproportionate since the value of the goods seized from truck No. DEL 6955 in the transport of which Shri Pahwa was allegedly involved was valued at less than Rs. 4.5 lakhs. Even as per his statement dated 5-8-90, appellant Shri Pahwa had clearly stated that he was only carrying out the directions of his employer. In these circumstances, ld. Counsel submitted that even if it is held that penalty was imposable, the quantum thereof has to be substantially reduced having regard to the fact that the value of the goods was only less than Rs. 4.5 lakhs and that the appellant was a paid employee. The appellant had also subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither claimed the goods nor had he acquired the same. He was therefore, not concerned with the seized goods in any manner. Ld. Counsel also submitted that the point needs to be noted that the commission which the appellant was to get even by his own admission was Rs. 3,000/- whereas a penalty of Rs. 50,000/- has been imposed on him. 21. Ld. JDR submitted that appellant Shri Mukesh Sethi had clearly admitted that he was in contact with Shri Ramesh Wadhera who was engaged in the smuggling of the goods from Nepal and he used to dispose of the said goods on commission basis. On 4-8-90 if the DRI officer, had not intercepted the truck carrying the smuggled goods Shri Mukesh Sethi would have taken delivery of the goods and disposed them of. Shri Mukesh Sethi was therefore, fully aware of the smuggled nature of the goods and he was actively involved in the acquisition and possession and sale of the smuggled goods. The penalty of Rs. 50,000/- was therefore clearly imposable on him. 22. On consideration of the submissions and the material on file, we observe that appellant Shri Mukesh Sethi had not come in possession of the smuggled goods though as per his own statement and that of P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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