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TMI Blog1998 (3) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Rupees fifty thousand only) 6. Shri Hayat, S/o Shri Khabad Rs. 50,000.00 (Rupees fifty thousand only) 7. Shri Murad, S/o Shri Sheru Rs. 50,000.00 (Rupees fifty thousand only) 8. Shri Achar Khan Rajad, S/o Shri Jinde Khan Rs. 20,000.00 (Rupees twenty thousand only) 3. The appeals of Shri Bhoore Khan, Shri Hayat and Shri Murad are not listed for hearing. The Commissioner also ordered for absolute confiscation of 252 F.M. Gold Biscuits weighing 29,393.280 kgs, 10 pcs of Gold weighing 245.450 gms. Gold ornaments weighing 58 gms., Silver ornaments weighing 592 gms, Textile and Miscellaneous goods valued at Rs. 2,000/-, totally valued at Rs. 1,34,91,919.00 under Section 111(b) and 111(d) of the Customs Act, 1962, along with the cloth, HDPE bag, Iron and Aluminium Boxes used as packing material under Section 118(a) of the Customs Act, 1962. The learned Commissioner has proceeded to confirm the order on the basis of the statements recorded from the various persons. He has dealt with all the aspects raised by the Counsels before him to negative them and to hold that the appellants are involved in smuggling of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een produced to substantiate this argument. On the other hand, he has noted the fact that the above noticees had corroborated the version of Shri Bhoore Khan and had confessed that foreign marked gold seized was meant for different noticees and their names were written on each packet and the same is on the record. He has noted that they had not come forward with any evidence to prove that the above facts were not true. It is also noted that the fact that Shri Peerana Khan had paid Rs. 1,00,000/- and a quantity of 130 tolas of foreign marked gold biscuits out of the seized gold pertained to him. Shri Gulia had also admitted in his statement dated 24-6-1994 that a quantity of 300 tolas of Gold was promised for him by Shri Achar Rajad through Shri Nihal and the seized gold contained his gold also. The Commissioner has noted that the medical certificate produced in response to the summons issued by the Customs authorities was admitted to be false and having been managed by his brother. Therefore, the Commissioner has held that it is established that whatever had been pleaded in defence is totally unfounded and hence the show cause notice was fully substantiated. 5. As regards the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items. These consignments were to be handed over to Achar Rajad, R/o Karmawali, Jaisalmer. It was stated that the consignment was meant for Gulia R/o Turkon ki Basti and Achar, Nihal and Pirane all R/o Matar ki Basti (Jaisalmer) whose names were written on the packets. It is stated that no statements were recorded from Achar, nor he was apprehended. The summons were issued but he did not respond. However, he has replied to the show cause notice. It was stated that Achar had been discharged by the Magistrate. There are two Achars in the matter and as this Achar was not identified therefore, the Magistrate Court had discharged him from the offence. It was stated that Achar was not son of Samabe. It was only one package, in which Achar s name was found. However, there was no name of the father, hence, it could not be related to Achar in the present case. He also pointed out from the statement of Shri Bhoore Khan with the reference to the Achar is to Achar Rajad and Shri Bhoore Khan had no personal knowledge. The learned Counsel also mentioned that the statements to implicate Achar son of Samabe cannot be relied. He also pointed out from the statement of Nihal that Achar son of Samabe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold and therefore, the quantum of penalty imposed is quite appropriate and less, taking into consideration the value of gold being more than 1.35 crores. 9. On a careful consideration of the submissions made by both the sides, we have to first see as to whether the goods seized were smuggled goods and carried foreign marking. There is no dispute on this aspect and there is no claim with regard to goods being not foreign marked and not being smuggled goods and not having been intercepted at the border, when the goods were carried by the Bhoore Khan. Therefore, on the basis of the panchnama and mahazar, it is clearly established that all the seized goods were foreign marked smuggled gold. 10. The next question that is required to be seen is about the involvement of the various persons and the fact of retraction said to have been made by them. 11. The goods were seized on 29-12-1993 during a joint operation conducted by Customs and BSF, three persons were noticed coming from Pakistan at 7 Kms inside the Indian Territory at a point 2 Kms west of Prahari post in Jaisalmer sector, who on seeing the two BSF persons, started running. On chasing, one person was apprehended who disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 30 years age. This statement of Bhoore Khan is the only statement which links the gold to be handed over to Achar R/o Karmawali. He had merely stated that he had heard from Sahadia that Nihal, Gulia and Achar belonging to Matare ki Basti and Turkon ki Basti used to purchase smuggled gold-silver Sahadia. There is no direct evidence linking the gold with the other persons named by him namely, Nihal, Gulia and Achar except about the names of those persons being on the packets. The department in order to prove the packets which carried the names of those persons, have prepared a panchnama in the presence of two witnesses namely, Sheru and Khabad s son. The panchnama records the details about the manner in which the gold were seized and also shows the foreign markings on the gold. 12. The statements of Shri Saroop Singh, Shri Vikaram Singh and Shri Babu Ram CT have been recorded to show about Shri Bhoore Khan being apprehended and about the recovery of the packets from him and about the statements given by him. Panchnama and the statements of these persons clearly establishes about the recovery of gold from Shri Bhoore Khan and therefore, Shri Bhoore Khan s involvement in the smuggl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized on 29-12-1993. He has no enmity with Achar Rajad, but the name of cousin brother of Achar is also Nihal it is likely that Achar with a view to saving his cousin brother Nihal may have taken his name under the cover of Nihal being written on the packet. He denied the suggestion that Achar Rajad was sending Nihal for smuggling gold. He admitted that Pirana is his brother-in-law and his sister is also married to his brother Vache. There is a dispute in between them over the issue of not sending the married sisters vice versa. A Panchayat had also taken place in this regard in their village and that they are not in speaking terms. He stated that one of the uncles of Pirana live in Pakistan and the name of the uncle is Adla and his cousin brothers are Mobin and Urs and he did not know about his other brothers. 14. In his further statement recorded on 29-1-1994, he denied the suggestion about his knowing PEGOUT JEEP as stated by Pirana but admitted that his friend Kamal Bhatia had one such jeep and whenever he required it he took it from him. He denied that no gold was brought through Achar S/o Samana. He admitted that Achar S/o Samana is his uncle and he did not know about him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese items. The carrier namely Bhoore Khan has clearly identified his name. In view of this clear admission of the carrier as well as the goods to be received by Achar Rajad, there is no doubt that Achar Khan Rajad S/o Shri Jinde Khan being involved in the matter and therefore, the imposition of penalty is justified. It is noticed that penalty of Rs. 20,000/- has been imposed against him while, in fact, against Achar S/o Shri Samabe penalty of Rs. 5 lakhs has been imposed. The persons who were to receive the gold from Bhoore Khan was Achar Khan Rajad of Karmawali as per the statement of Shri Bhoore Khan, therefore, the imposition of penalty of Rs. 20,000/- on Achar Khan Rajad appears to be surprising and it is probably due to confusion in the mind of Commissioner, as the penalty imposed is less, therefore, the same is confirmed. 16. From the statement of Shri Pirana, it reveals that he is a mere carrier. The departmental investigating officers have not cared to find out, who will be the real recipient. The departmental action has stopped investigation without identifying the real recipient on the Indian side. In this case, the recipient named are mere carriers, this reflects a ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n smuggling. He was to receive the gold and that he had talked to his cousin to arrange and send gold for him. Thus, there is a clear self-implication in the matter. There is no reconsilement of the statements from him. In that view of the matter, the charges against Pirana Khan is proved. However, we notice that the Commissioner has imposed only Rs. 20,000/- penalty against the real recipient namely Achar Khan Rajad. In that view of the matter, the penalty imposed on Pirana Khan is required to be scaled down to Rs. 1 lakh only. Ordered accordingly. 18. As regards the case pertaining to Murad and Hayat, they are the persons who were supposed to have accompanied Bhoore Khan. They have been imposed Rs. 50,000/- penalty each. These two persons have been identified by Bhoore Khan, therefore, they are clearly involved in the act of smuggling the gold from Pakistan to India. However, we notice that there is no appeal filed by Hayat and Murad and therefore, no order is required to be passed in respect of them pertaining to confirmation of penalty. 19. In the result, the penalty against Achar S/o Samabe, Nihal S/o Baroach and Gulia S/o Mangal is set aside, while the penalty against Pir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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