Customs, Excise and Gold Tribunal - Delhi
Kirpal Singh vs Commissioner Of Customs on 14 October, 1999
Equivalent citations: 2000(118)ELT654(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This appeal has been filed by the appellant against the order dated 24-7-1998 passed by the Commissioner (Appeals) vide which he rejected the appeal of the appellant against the order-in-original dated 8-6-1998 of the Assistant Commissioner, Customs imposing penalty of Rs. 3000/- on him under Section 112 of the Customs Act.
2. Facts giving rise to this appeal may briefly be summed up as un-der:-
3. On 18-4-1997 on receipt of specific information the Customs Officers of Nepalganj Road, intercepted a UPSRTG Bus No. UP 25 7505 at Nanpara Lakhimpur Road. On conducting search of the bus, a secret cavity near the left side of the entry door of the bus covered with a wooden box was discovered. The driver of the bus was asked to remove the wooden box and on opening the said cavity it was found to contain one bag. That bag was taken out and it contained foreign origin ring buttons. The owner of that bag was also present there and he along with the conductor and the driver of the bus, was brought to the office and there they all disclosed their identity. The driver disclosed his name as Sabahat Hussain while the conductor, the appellant disclosed his name as Kirpal Singh and the owner of the contraband recovered, disclosed his name as Surendra Kumar. Their statements were recovered, wherein driver and conductor admitted the recovery of the bag containing foreign origin goods from the bus. The onwer of the goods also admitted that he was carrying the same in the bus.
4. After concluding the proceedings, the Additional Commissioner of Customs, imposed penalty of Rs. 10,000/- on Surendra Kumar, owner, of Rs. 5000/- on Sabhat Hussain Khan, driver and of Rs. 3000/- on Kirpal Singh (Appellant) and of Rs. 10,000/- on Suresh Chandra through order-in-original dated 8-6-1998.
5. Feeling aggrieved with the above said order, the appellant filed appeal before the Commissioner (Appeals) who dismissed the same through the impugned order. The appellant has come in appeal before this Tribunal.
6. I have heard the counsel and the ld. JDR.
7. The recovery of jute bag containing ring buttons from the bus on which the appellant was conductor at the time of checking by the Customs Officers on 18-4-1997 on Nanpara-Lakhimpur Road, had not been disputed before me by the learned counsel for the appellant. The counsel for the appellant, however, has contended that the foreign origin of the goods does not stand proved and that the confessional statement of the appellant could not be made basis for imposition of penalty on him. Therefore, the impugned order of the Commissioner deserves to be set aside. But in my view, this contention of the counsel is wholly misconceived and not liable to be accepted. The foreign origin of the goods in question, cannot be in fact questioned by the appellant, as the owner Surendra Kumar who was travelling in the bus, admitted before the Customs authorities that he was carrying the foreign origin goods. There is nothing on the file to suggest if he ever filed any appeal against the order-in -original, imposing penalty of Rs. 10,000/- on him. The appellant himself in his statement before the Customs authorities recorded on 28-4-1997 admitted that Surendra Kumar was carrying foreign origin goods in the bus. He even reiterated this statement on 29-4-1997 when recorded under Section 108 of the Customs Act. He also admitted in his statement that Surendra Kumar had agreed to pay him Rs. 200/- for allowing him to take contraband goods in the bus. He had thus full knowledge about the carriage of contraband goods in the bus by Surendra Kumar. His confessional statement before the Customs authorities was enough to prove the case against him to the hilt. The driver of the bus was also penalised by imposition of penalty of Rs. 5,000/- and there is no evidence on the file to show that he ever challenged the order-in-original of the Additional Commissioner by filing appeal before the Commissioner (Appeals).
8. It is well settled that the confessional statement before the Customs Officer is not a statement recorded under Section 161 of Cr. P.C. Therefore, it is a material piece of evidence collected by the Customs Officer under Section 108 of the Customs Act and can be used as a substantive evidence, as laid down by the Apex Court in the case of Naresh J. Sukhwani v. Union of India, reported in 1986 (83) E.L.T. 258 (S.C.). Therefore, the contention of the counsel that the confessional statement of the appellant could not form the basis for imposition of penalty on him, cannot be sustained. The counsel has, no doubt, referred to certain Cases, but the law laid down in none of those cases is applicable to the facts of the present case. The first case referred to by the counsel, is Kulbhushan Jain v. Commissioner of Customs, Delhi reported in 1999 (111) E.L.T. 906. In that case, seizure of ball bearings of Polish Origin was made but there was no evidence on record to prove the restrictions on the sale and purchase of the same under the Customs Act. It was for that reason that the confiscation of the goods was not held to be legal.
9. The second case referred to, by the counsel is Mahindra Chandra Dey v. CEGAT reported in 1992 (58) E.L.T. 192 (Cal.) wherein the High Court has only observed that for proving the voluntary nature of the confessional statement, the onus is on the prosecution and should be treated as a light weight document needing independent corroboration. But this view of the Calcutta High Court cannot be given preference over the law laid down by the Apex Court in Naresh J. Sukhwani's case, supra.
10. Another case cited by the Counsel is Hindustan Bearing Corporation v. Collector of Customs reported in 1990 (50) E.L.T. 91 (Tribunal) wherein it has been observed that foreign marking on the goods is no basis for confiscation. Similarly, in B. Lakhmichand v. Government of India reported in 1983 (12) E.L.T. 322, relied on by the counsel, it has been ruled that penalty is not sustainable if a specific clause of Section 112 was not quoted.
11. The law laid down in none of these cases is attracted to the facts of the present case in the light of the discussion above. The penalty amount has been rightly imposed on the appellant for having been knowingly and deliberately allowed the transportation of foreign origin goods in his bus, for consideration. The impugned order of the Commissioner is perfectly valid and calls for non interference. Therefore, there is no merit in the appeal of the appellant and the same is dismissed.