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TMI Blog2002 (8) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... 99, followed by investigations including recording of statements, search of residential premises and recovery of documents therefrom. The driver of the truck and his companion Sh. Krishan Mohan Tiwari stated that the goods were being transported to the consignee namely Sh. Deepak Mishra. Certain slips recovered from the possession of Sh. Tiwari by DRI officers were found to contain a record of phone numbers. One of such phone numbers was that of Sh. Deepak Mishra. In subsequent search of the residence of Sh. Deepak Mishra, a diary, a note book and certain other papers were recovered. The documents so recovered were found to contain certain entries of account showing business to have been done in silk yarn of foreign origin. Statements of Sh. Deepak Mishra and his father Sh. K.P. Mishra were recorded under Section 108 of the Customs Act. In his statement, Deepak Mishra denied that he was concerned in any way with the goods intercepted by the DRI on 18-4-99 and that the entries in the diary and other papers recovered from his residence had nothing to do with the said goods. He also disowned the telephone numbers noted on the slips recovered from Sh. Tiwari. His father, on the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not have been accepted with any credence. Without prejudice to the above submissions, ld. Counsel submits that the penalty of Rs. 20,000/- imposed on Sh. Tiwari is exorbitant. 5. Ld. Counsel for the other appellants submits that the necessary pre-requisite for imposition of penalty under Section 112(b) has not been satisfied in this case inasmuch as, according to counsel, nothing has been found by the Commissioner to link any of his clients with the confiscated goods. Ld. Counsel submits that an exorbitant penalty of Rs. one lakh has been imposed on Deepak Mishra on the basis of statements of the co-accused. That was not enough under Section 112(b). According to him, there ought to have been a clear nexus between the goods in question and any commissions/omissions of these persons. The appellants should have been found to have indulged in any of those activities specified under Section 112(b) rendering the goods liable to confiscation, in order that they could be penalised under that provision. This has not been found in this case and hence the penalties are not sustainable. Ld. Counsel further points out that the incriminating part of Sh. K.P. Mishra s statement dated 24- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the findings recorded by the Commissioner. 8. I have examined the submissions and shall deal with the appeals one by one. (i) Appeal No. C/466/2000 - In this appeal, the grievance of Sh. Krishan Mohan Tiwari is against imposition of penalty of Rs. 20,000/- on him under Section 112(b) of the Customs Act. The appellant was admittedly an occupant of the truck intercepted by the DRI officers on 18-4-99. The silk yarns with the markings Made in China etc., recovered by the officers from the vehicle, were not disowned by him. On the other hand, in his statement recorded by the officers under Section 108, he admitted that the goods were smuggled Chinese silk yarn and were being transported by him to the consignee, Sh. Deepak Mishra. Sh. Tiwari could not produce to the officers any document proving licit acquisition or possession of the goods. Tiwari s statement was never retracted by him. It has been pointed out by his counsel today that Tiwari s brother had sent a letter to the Commissioner of Customs under certificate of posting. He has shown me a copy of that letter along with a copy of certificate of posting available on record. A certificate of posting of a letter can not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 26-4-99 addressed to the Commissioner of Customs cannot be accepted as a valid retraction for the reasons already recorded. I have already found the submissions of Sh. K.M. Tiwari linking the seized goods with Deepak Mishra as a credible piece of evidence in this case. The adjudicating authority has largely relied on Tiwari s statement for penalizing Deepak Mishra. It has been held by the Supreme Court in the case of Naresh J. Sukhawani v. Union of India [1996 (83) E.L.T. 258] that a statement of co-accused is reliable, without corroborative evidence, for the purpose of imposing penalty on the accused. The condition for a penalty under Section 112(b) of the Act has been satisfied in respect of Sh. Deepak Mishra. He has, of course, denied all the allegations of the DRI, in his statement given to them under Section 108 as also in his reply to the show-cause notice. But such denial per se would not absolve him of penal liability inasmuch as he has not been able to discredit the forceful evidence of K.M. Tiwari, the co-accused. I have seen the decisions of the Tribunal cited by the Counsel and I find that those decisions cannot be applied to the record of facts and evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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