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TMI Blog1994 (11) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... y Lal, as detailed out in the panchnama/recovery memo, said to have been prepared on the spot. It was alleged that the appellant, Shri Shiv Charan Bajpai, was also present on the spot, but he slipped away from the house when some photographs of the contraband gold, as recovered above, were being taken and accordingly FIR to that effect was lodged at 11.20 A.M. with the Police Station, Kanpur. It was further the case of the Department that the appellant later on appeared on his own accord. It was their further case that the contraband gold was brought by the said two persons, namely, S/Shri Ram Niwas Sharma and Shree Ram Agarwal from Delhi for getting the ornaments manufactured through the appellant, Shri Shiv Charan Bajpai. Statements of Shri Shiv Charan Bajpai and the said two persons were also recorded. All these three persons, that is to say, the appellant, Shri Shiv Charan Bajpai, and the said two persons, namely, S/Shri Ram Niwas Sharma and Shree Ram Agarwal were arrested. As a sequel thereof, Show Cause Notices were issued to the appellant as well as to the said two persons, namely, S/Shri Ram Niwas Sharma and Shri Ram Agarwal to show cause as to why the contraband gold and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not challenged, but set aside the imposition of penalty on the appellant and remanded the case for re-examining the case on merits. 3. On remand, the Collector of Central Excise issued separate Show Cause Notices to the appellant as well as to the said two persons, namely, Shri Ram Niwas Sharma and Shri Shree Ram Agarwal. The appellant hotly contested the Show Cause Notice denying all the charges levelled against him. However, the Collector after usual adjudication proceedings imposed the personal penalty of Rs. 2,50,000/- under Section 111 of the Customs Act, 1962 and another Rs. 2,50,000/- under Section 74 of the Gold (Control) Act, 1968 on the appellant, Shri Shiv Charan Bajpai. She also imposed different penalties on the said two persons, as detailed out in the impugned Order. Hence the present two appeals, that is to say, Appeal No. C/2146/91-NRB challenging the imposition of penalty under the Customs Act, 1962 and Appeal No. G/94/91-NRB challeng ing the imposition of penalty under the Gold (Control) Act, 1968. 4. We have heard Shri Harbans Singh, learned Counsel for the appellant and Shri K.K. Datta, learned JDR, for the respondent. 5. At the outset, it was made clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egraphically (photocopy of the telegram is at page 53 of the paper book). It was highlighted that since the officers of the DRI, New Delhi, were keeping surveillance on the said two persons, namely, S/Shri Ram Niwas Sharma and Shree Ram Agarwal and came to Kanpur for this purpose, they roped the appellant when they found as alleged that the said two persons had come to the residential premises of the appellant and in their over zeal the officers of the Customs and Excise Department also lodged a false report with the police that the appellant slipped away from his house when the photocopies of the seized contraband gold were being taken and arrested the appellant in the evening a charge which could not be proved in the court. It was further contended by the learned Counsel that the story that the appellant gave the key of the almirah from which the contra band gold was said to have been recovered or that he (appellant) gave or supplied the tools for opening the iron pully are not mentioned in the panchnama/recovery memo. Had it been a fact, the officers concerned would have definitely seized the key since it would have been a material evidence against the appellant. He further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incident i.e. 3-9-1973; that he had come to the residence of the appellant at about 5.45 AM on 3-9-1973; that he had brought 30 gold bars from Shri Basant Lal of Delhi to deliver to Shri Shiv Charan Bajpai. Shri Shree Ram Agarwal, who was also said to be present and to whom the similar Show Cause Notice was also issued also deposed on the same day that he had come to the residence of the appellant, Shri Shiv Charan Bajpai at about 6.00 PM of 3-9-1973 and after about 15 minutes of his arrival, the Customs Officers also arrived. He confessed that the pully containing 11 gold bars which was seized by the customs authorities was brought by him. He further confessed that he had brought this gold for getting the ornaments made through the appellant in connection with the marriage of his son. He also stated that he had purchased 4 gold bars from one Shri Kakoo Dalal of Farrukhabad and had brought 7 from Bombay which he had procured through M/s. Chandkant Co. These gold bars had been acquired about three or four years back. The pully said to have been especially fabricated for concealing and transporting the gold and the molten wax had been poured into it by him in order to fix the gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presence of the appellant Shri Shiv Charan Bajpai. It also does not say that the said two co-noticees, namely, Shri Ram Niwas Sharma and Shri Shree Ram Agarwal were present at the time of the recovery. It also does not mention the place where it was prepared. From a reading of the Panchnama and recovery Memo, it is clear that it does not mention that the contraband gold was recovered from the possession of the appellants. What is mentioned is that during the search of the residence premises of the appellants 30 gold bars and 8 pieces of primary gold were recovered from the Almirah and 11 gold bars were recovered from the pully laying beneath wooden takht. However, it was alleged that the appellants gave the key to unlock the Almirah. But this fact is not mentioned in the Panchnama or recovery memo. Like-wise, it was also stated that the appellants gave the tools to open the pully but this fact is also not mentioned in the said Panchnama/recovery memo. Shri R.M. Sahai, Superintendent of Central Excise who was the member of the raiding party and also prepared the Panchnama/recovery memo had admitted in his cross-examination that the key of the said Almirah said to have been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riously enough it does not bear the signatures of any officers or the member of the raiding party except the said two Panch witnesses. It has not even been counter signed by any officer of the Department. 11. It was alleged that when the photographs of the contraband gold were being taken the appellants Shri Shiv Charan Bajpai fled away from his house but subsequently appeared at his own accord in the evening. It was the case of the appellant that the said story of fleeing away from the spot and subsequently appearing in the evening at the Headquarters was a concocted story. From the record we find that no such note was recorded in the Panchnama/Recovery Memo. Even no document was prepared regarding the fleeing away of the appellants from the scene. No statement of any person was recorded in this connection. It is not the case of the Department that after fleeing away from the spot any attempt was made to trace him out. It is inconceivable that when a number of DRI officers and the officers of the Central Excise and Customs Department were present as alleged on the spot how the appellant slipped away in broad day light without any notice or challenged by any one of them. The stor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entually turned up at the headquarters after proper formalities were completed at his house. The search party had returned to the headquarters at about 12.30 P.M. during the day and Shri Bajpai turned up in the evening at around 5.30 P.M. Thus, we see force in the arguments of the ld. Counsel that the Department had failed to prove that the appellant slipped away from the spot in the morning and re-ap peared in the evening at the headquarters. On the other hand we find much force in the defence of the appellant that the appellant was not present at the time of the search and seizure of the contraband gold at his house but was un der treatment of Dr. S.C. Gupta of Primary Health Centre, Unnao, which is corroborated by the Medical Certificate on the record and from the statement made by the Doctor himself during the assessment proceedings and further that he reached in the evening of 3-9-1973 at his house where certain officers of the Department were present who arrested him and brought to the Collectorate Office. A fact admitted by Shri R.P. Singh during his cross examination as afore said. The presence of the alleged Panch witnesses S/Shri Prem Chand Sharma and Bankey Lal at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and arrested. But no statement of any officer, including of Shri R.M. Sahai, Supdt. was recorded or produced during adjudication proceedings. No document is even signed by any officer except Mr. R.M. Sahai, Supdt. Even al leged confessional statement said to have been arose out of the interrogation by the officers of the DRI (to which we will advert later on) does not bear the signa ture of any officer except again of the same gentleman Shri R.M. Sahai, who while signing the statement has stated as follows : Recorded in my presence . It appears from the evidence produced by the Department that the whole case hinges upon the documents prepared by Shri R.M. Sahai which cannot be believed in the absence of any corroborated evidence from an independant source. 12. Now coming to the confessional statement, it is admitted to Shri R.P. Singh, Superintendent, Central Excise, that in the evening of 3-9-1973 he and other officers were present in Shri Bajpai s house and when the appellant re-ap peared they arrested him and brought him to the Collectorate Office. It was only thereafter that his statement was recorded. It is admitted to the Department that the bail application retracti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on 6-9-1973 he got himself exam ined by the Doctor who found five injuries caused by blunt object and were of 48 hours duration. This proved that the appellant sustained these injuries when he was in the custody of the Customs Authorities for which no explanation is forthcoming from the side of the authorities. It is an indisputable fact on the record that immediately after the arrest of the appellant on 3-9-1973 he moved his bail application in the Criminal Court on the following day that is to say 4-9-1973 retracting the said confessional statement and complaining about the harassment and beating. This was followed by a telegraphic complaint dated 9-9-1973 to the Collector of Customs, District Magistrate and Superintendent of Police and a subsequent detailed complaint. In these circumstances we hold that the alleged confession was retracted at the earliest opportunity and was not belated. As regards the alleged confessional statements of the two other conoticees we may state at the outset that, according to the Department itself, Shri Shree Ram Agarwal brought the pully containing 11 gold bar biscuits to the house of the appellant, Shri Shiv Charan Bajpai, which was seized by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. As regards the statement of the other co-noticees, Shri Ram Niwas Sharma, it may be stated that his statement was also does not prove that the appel lant consciously acquired or possessed the contraband gold. In his statement, Shri Ram Niwas Sharma has stated that he came from Delhi to Kanpur with the contraband 41 gold bars. These gold bars were given to him by Shri Basanti Lal of Delhi with a direction to give them to the appellant. On reaching to the house of the appellant at 5.45 PM, the Customs and Central Excise Officers also arrived and recovered the said contraband gold. He admitted that he came to Kanpur for the first time with the contraband gold bars, adding that only once he met the appellant, Shri Shiv Charan Bajpai in the past in connection with the marriage before one or two years and at the time of his departure from Delhi, the said Shri Basanti Lal told him the address of the appellant. It is said that in his statement, Shri Ram Niwas Sharma has also stated that he gave the said gold bars to the appellant. Beyond this statement, there is nothing on record either in his statement (Shri Ram Niwas Sharma) or by way of any other statement to corroborate that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act (see paragraph 9) presumably realising that from the case of the Department itself, the appellant was not concerned in any way with the smuggling of the gold. This is against the law as after remand the re-adjudicating authority cannot go beyond the terms of direction of the superior authorities as rightly pointed out by the learned Counsel for the appellant. In this view of the matter, we are sup ported by the case law cited at the Bar, namely Scientific Instruments Co. Ltd. v. Collector of Customs, 1980 (6) E.L.T. 89 (Cal.); Collector of Central Excise v. Eupharma Laboratories - 1989 (43) E.L.T. 471; and Kerala State Detergents Chemicals Ltd. v. Collector of Central Excise, Cochin - 1987 (27) E.L.T. 312. 18. It may also be noted that for smuggling, acquiring and possessing 30 golds bars and 11 gold bars, 8 pieces the said co-noticees, namely, S/Shri Ram Niwas Sharma and Shree Ram Agarwal respectively have already been pe nalised, as aforesaid. In the show cause notice issued to the appellant there was no charge that the entire contraband gold or a part of it was possessed by the said two persons and the appellant jointly. Under these circumstances, the ap pell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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