Custom, Excise & Service Tax Tribunal
M. Mohammed Musthafa vs Cc(Preventive), Cochin on 30 May, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No ../ 2014 Appeal(s) Involved: C/313,290/2007-DB Arising out of OIO No.07/2006 dt. 18/12/2006 passed by CC(Preventive), Cochin Pulikkuth Hamzath Abdussalam @ Kunhimon, S/o. Mohammad Haji Mannathodi House, Vemboor, Malappuram M. Mohammed Musthafa S/o. Mohammad Haji Mannathodi House, Vemboor, Malappuram Appellant(s) Versus CC(Preventive), Cochin Respondent(s)
Appearance:
None For the Appellants Dr. A.K. Nigam, Addl. Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 06/05/2014 Date of Decision: Order Per : S.K. MOHANTY The appellants herein, Pulikkuth Hamzath Abdussalam @ Kunhimon and Mohammed Musthafa have filed the present appeals against impugned order dated 20.11.2006 passed by the learned Commissioner of Customs (Preventive), Cochin, wherein gold biscuits along with foreign as well as Indian currencies have been ordered for absolute confiscation and penalty of Rs.5,00,000/- and Rs.1,00,000/- have been imposed on the appellants. The facts involved in both the appeals are common, therefore, the same are disposed of by this common order.
2. The appellants were not present despite notice. There was also no adjournment request. Thus, the appeals are disposed of based on the available records and upon hearing the learned A.R. for the respondent - revenue.
3. The facts of the case in brief are that the Customs officials of Calicut Commissionerate have seized 38 gold bars, foreign as well as Indian currencies from the office annexed to the residential premises of the first appellant Kunhimon on the reasonable belief that the same were smuggled gold and sale proceeds of smuggled gold. During adjudication proceedings, the first appellant did not appear either before the investigating or adjudicating authorities, despite issuance of several summons/notices. In the statement recorded under summon, the second appellant Mohammed Musthafa has explained the modus operandi about Kunhimon's involvement in gold business. Based on detailed investigation, the matter was adjudicated and the seized gold and currencies were ordered for absolute confiscation. Hence, this present appeal.
4. In the grounds of appeal, the first appellant Kunhimon has interalia, stated that no show cause notice has been served on him and also there is no evidence to show that the premises from where seizure of contraband goods has been made were in his exclusive possession; and thus, imposition of penalty based on the statements of other persons are not sustainable in law. The second appellant Mohammed Musthafa has stated that he was not in any manner connected with any alleged smuggling of gold or of its disposal; and thus would not be liable for any penalty.
5. We observe from the available records that the summons have been issued in the address of the first appellant Kunhimon on several occasions, receipt of which were artfully avoided by him; and finally the summon dated 05.1.2001 was served on him by way of affixation under Mahazar on 07.11.2001. Further, despite adequate notice, neither did he file the reply to show cause, nor did he attend the personal hearing fixed by the adjudicating authority. Therefore, the stand taken in the appeal memorandum has no substance and cannot be relied on as defense-evidence for non-imposition of penalty as provided under the statute. Thus, the first appellant Kunhimon is liable for the penal consequences as provided under Section 112(b) of the Customs Act, 1962, based on the documents/goods seized from his premises, in presence of the witnesses and the statements recorded from other co-accused. There is no credibility in the submissions of the second applicant Mohammed Musthafa, in as much as, in his statement recorded pursuant to summon, he had admitted his role in the smuggling activities. Therefore, he has rendered himself liable for penalty under the above statutory provisions.
6. However, on careful analysis of the facts of the case, we find that the quantum of penalty imposed on both the appellants are in the higher side being not in equal measure to the value of goods, which have been confiscated and in the possession and control of the Government. In view of above and in the interest of justice, we reduce the penalty amount in case of the first appellant Kunhimon from Rs.5,00,000/- to Rs.2,50,000/- and in case of the second appellant Mohammed Musthafa from Rs. 1,00,000/- to Rs.50,000/-.
7. Both the appeals are disposed of in above manner.
(Pronounced on ..) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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