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TMI Blog2008 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 Kgs. (gross-approximately) of Cubic Zirconia and silver chain weighing 5.1 Kg. (gross-approximately) as well as two black coloured zipper bags and one old and used mobile phone was unwarranted and uncalled for and levy of redemption fine of Rs. 10,00,000/- (Rupees Ten Lakhs only) as well as penalty of Rs. 2,00,000/- (Rupees Two Lakhs only) was unjustified. 1.2 The second and third Appellant who are officers of Customs Department have appealed against penalties of Rs. 50,000/- (Rupees Fifty Thousand only) each imposed on them under Section 112(b) of Customs Act, 1962. Their Appeals have been registered as Appeal case Nos. CDM-181 and 182 of 2004. 1.3 On 19-9-2003, the first Appellant arrived at Netaji Subhash Ch. Bose International Airport, Kolkata by Flight No. IC 732 from Bangkok. He was found in possession of two black zipper bags and one of such bags contained Cubic Zirconia of 45.486 Kgs. (gross) approximately and silver chain of 5.1 Kgs. (gross) approximately that was detected by x-ray at exit gate of the above airport and in absence of any evidence proving legal importation thereof were seized. He was subject to interrogation on various dates. Neither the Appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was his distant relative and he came to know of his arrest. But he was not a smuggler. When investigating officer showed him the undated letter under his signature for corroboration, he stated that he signed that letter without knowing contents thereof and he was made fool by one Shri Ashok Kr. Dubey for such signature. Finally he disowned that letter. 1.7 By a further enquiry to a person Shri Pramod Kr. Mishra, who was living with the first Appellant in Kolkata, it was ascertained that goods that was seized from the first Appellant was not owned by him because his solvency was not more than Rs. 25,000/- to Rs. 50,000/-. Sri Mishra also failed to answer who was the owner of seized goods. He denied to have known Shri Dinesh Singh, Shri Rakesh Singh and Shri Rajinder Singh. 1.8 With above thorough enquiry, a case was made against first Appellant with charge of smuggling. Learned Adjudicating Authority hearing the first Appellant and also examining his reply dated 7-6-04 in response to show cause notice, statements recorded from different persons including the Appellant came to the conclusion that the cubic zirconia and the silver chain were smuggled goods without being evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant, they were made liable to penalty of the aforesaid amount under Section 112(B) of the Customs Act, 1962. 3. Learned Counsel Shri Abdul Hamid appearing for the first Appellant vehemently argued that the Appellant was not aware of the seized goods contained in the seized bag. Probably His bag was exchanged by another passenger with a like bag. He admitted his fault out of fear. He could reveal things known to him to investigating agency. Like goods were purchased in Bangkok for importation into India by somebody as per bill copies subsequently received by Authority through a letter said to have been sent by one of his relatives. This was done to inculpate him to charges. But he was innocent. The Appellant having been found with the goods he ma be exonerated from charges for no fault of him. He should not face severe penal consequence of law. 4.1 Learned Counsel Shri Faisal Farooq, Advocate appearing for second & third Appellant submitted that there is no iota of evidence against both Appellants to prove their involvement. There was nothing in record to suggest that the goods seized was from that bag which was examined by both Appellants. They discharged their duties in g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant with another like bag or fill any goods therein. 4.4 The Department failed to discharge burden of proof in respect of the allegation that these two Appellants helped the first Appellant in escaping with smuggled goods. When the first Appellant at no point of time revealed name of these two Appellants, victimizing them is unjust and illegal. Therefore penalty imposed on them was uncalled for and unwarranted. 5. Shri Vineet Ohri, learned Jt. CDR appearing for Revenue submitted that by a thorough investigation when all the Appellants were fund to have committed breach of law, they were rightly dealt by the learned Adjudicating Authority by an elaborate and reasoned Order. Therefore such Order should not be interfered. 6. Heard both sides and perused record. It is an uncontroversial fact on record that the first appellant, at the exit gate was found in possession of a black zipper bag containing the seized goods. No evidence could also be adduced by that Appellant at the spot or thereafter to prove legal importation of the seized goods. That Appellant also did not reveal name of persons who engaged him in illegal import when his solvency was doubted. Concealing identity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as within their reach also and they had actively involved themselves to help the first Appellant in commitment of the offence. 7.3 When there was x-ray of the baggage in the conveyer belt itself and nothing was found questionable at that stage nor owner thereof was found, detection by X-Ray at the exit gate gives benefit of doubt to these two Appellants. Revenue could not lead any evidence to prove that the first Appellant was in possession of questioned bag all along from origin to termination of journey and even when he submitted for checking these two Appellants. No inquiry was done with Airport Authority or Air Ticket issuing Agency to trace whether any baggage ticket was issued to first Appellant to identify the bag in question with first Appellant so as to implicate these Appellants. 7.4 Therefore in view of aforesaid benefit of doubts and in absence of direct, cogent and credible evidence against these two Appellants nothing can be concluded against them to hold them In the result, both the Appellants succeed and penalty of Rs. 50,000/- (Rupees Fifty Thousand only) each levied on them is waived. 7.5 In the course of hearing we were given to understand by Revenue that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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