Customs, Excise and Gold Tribunal - Mumbai
Shri Lilachand R. Solanki And Shri ... vs The Commissioner Of Customs, Airport on 29 April, 2004
Equivalent citations: 2004(175)ELT279(TRI-MUMBAI)
ORDER K.D. Mankar, Member (T)
1. The appellants are aggrieved by the impugned order Passed by the Commissioner of Customs, whereunder a penalty of Rs. 3 lakhs each was imposed on the appellants, under Section 112 (a) and (b) of the Customs Act, 1962. In the impugned order, the Commissioner has held that, the appellants had aided and abetted in the act of smuggling of 92 gold bars which were valued at Rs. 38,56,421/- IMV and Rs. 48,70,179/-LMV. The said gold was absolutely confiscated. Through the instant appeals the appellants are contesting the basis on which the Commissioner held the appellants liable for penalty.
2. Heard both sides.
3. The facts in brief are as under :-
On 30/10/93, on specific information that two Air India employees named Mr. Solanki and Mr. Godambe attached to the Air India Cabin Catering would be removing gold from Air India aircraft arriving from Dubai at abut 1900 hrs. on 30/10/93 in a Maruti Gypsy Vehicle No. Mh-02-J-4745. Accordingly officers of Air Intelligence Unit kept a watch on the said aircraft which arrived as Flight No. AI 710 from Dubai at 1900 hrs and parked in remote bay No. 66. At around 2315 hrs. the said officers noticed one Jeep, Maruti Gypsy coming towards the said aircraft and slopped near the ladder and two persons alighted from the jeep and boarded the aircraft, after about 20 minutes the said two persons came down and entered the jeep. The officers who were keeping surveillance signalled them to stop the vehicle but the occupants did not respond to their signal and they sped away in the vehicle. As a result of alerting the exit point such as Taxi gate and IAC gate, the officers identified the said Maruti Gypsy bearing No. MH-02-J-4745 attached to Air India Cabin Catering Section which was under the control of Asstt. Cabin Supervisor Shri S. V. Godambe. The Officers noticed the aforesaid Maniti Vehicle while is was entering the airport area from the town side through taxi gate and intercepted the person who was driving the vehicle and brought the vehicle and driver to Air Intelligence Unit for investigation. On interrogation, the person who was driving the vehicle identified himself as Mr. S.V. Godambe working with Air India as Asstt. Cabin Supervisor in the cabin catering section and admitted that he along with Mr. L.R. Solanki Handyman in Cabin Catering Section of Air India had earlier removed 92 gold bars in two cloth bundles from the toilet of Air India aircraft which had arrived from Dubai as Flight No. 710 and was parked at bay No. 66.
Shri L.R. Solanki was thereafter apprehended by Air Intelligence Officers and was brought to Air Intelligence Unit for investigation. In his statement recorded under Section 108 of the Customs Act, 1962 he had interalia stated that he was working with Air India as handyman/sweeper; that on 30/10/93 while he was coming on duty Mr. D.N. Vinjuda, an employee of Air India told him that one consignment of gold bars was kept in Ist Class toilet of Air India Flight No. AI 710 parked at bay No. 66 and told him to remove the said gold from the aircraft and promised him to pay Rs. 4,000/- in addition to the amount which was to he paid to Shri S.V. Godambe; that he (Solanki) took Mr. S. V. Godambe into confidence and informed him about the concealment of gold in AI 710, parked al bay No. 66 which had already arrived at about 1900 hrs. on the same day; that Shri L.R. Solanki and Shri Godambe both went to the said aircrafts parking bay in Air India vehicle Maruti Gypsy bearing Registration No. MH-02-J-4745 and both boarded the said aircraft and Shri L.R. Solanki took out the gold with the help of Shri S. V. Godambe and then he concealed two cloth bundles containing 92 gold bars on his body under his trouser and came out of the aircraft; that both entered the jeep which was parked near the aircraft and Shri L.R. Solanki sat beside Shri S. V. Godambe who was on the driver's seat and that they moved hurriedly and suddenly they noticed that a few Customs Officers in plain clothes signalled them to stop but Shri S.V. Godambe sped away ignoring Customs Officers, towards NBT (Domestic Airport Exit Gate) near Indian Airlines hangar; that they stopped there and Shri L.R. Solanki hid both the cloth bundles containing 92 gold bars in the grass and then they went to Shri D.N. Vinjuda's residence at B/1/27 Ekatmata Nagar, JD Nagar, Andheri (E), Bombay-59 in the said vehicle and told him the entire incident and requested to save them; that Shri D.N. Vinjuda asked Shri S. V. Godambe to leave and instructed him not to disclose anything about hidden gold bars to the Customs; that Shri D.N. Vinjuda asked Shri L.R. Solanki lo accompany him and hired an auto rickshaw and reached Airport.
He further stated that he came inside the Airport to the spot where the said gold bars were hidden; that he searched and found the gold bars and carried the same by concealing on his person under trouser worn by him; that he came out of the airport and then he hired a taxi and went to Shri D.N. Vinjuda's residence and then Shri D.N. Vinjuda gave him Rs. 50/-, that Shri L.R. Solanki took an auto rickshaw and came to Airport and then he went to Air India canteen and thereafter while he was going to attend flight of Delta Airways, Intelligence Officers of Customs stopped him and questioned about gold and took him to Air Intelligence Unit office at Module II Sahar Airport for questioning, that on persistent questioning he admitted the removal, carriage, possession, concealment and delivery of the said gold bars of foreign origin; that he also admitted his involvement and connivance with Shri S. V. Godambe and Shri D.N. Vinjuda; that his job was to remove and carry and handing over to Shri D.N. Vinjuda at his residence and that he did not know anything about the owner of the said gold.
The statement of Shri D.N. Vinjuda was recorded under Section 108 of the Customs Act, 1962 on 31/10/93 wherein he interlia stated that he was working with Air Cabin catering Section as Handyman; that on 27/10/93 by flight No. AI 710 at 1900 hrs; that he had brought one colour Television and paid Customs duty on that at the time of clearance and reached home at about 2100 hrs and that on the early hours of 31 1093 Customs Officers from Airport along with two panch witnesses and one Air India employee Shri L. R. Solanki came and searched his residence; that during the course of search in presence of the said witnesses and Shri Solanki and himself the said officers had recovered two specially made cloth bundles from the locker of his cupboard in his bedroom and they found 92 gold bars of foreign markings of 10 tolas each totally weighting 10727.2 gms valued at Rs. 38,56,421/- IMV and Rs. 48,70,149/- LMV and the same were seized under panchanama dated 31/10/93 alongwith the cloth bags used for packing the same and one boarding card issued in his name for the flight AI 710 dated 30/10/93 showing destination Bombay, Class Y, Seat No. 10C.
4. The main defence of the appellants is that, their statements were recorded by the Customs Officers under threat and duress. These statements have been retracted. The statements of co-accused cannot be used against them without independent corroboration. There were certain deficiencies in the panchanama of the so called seizure of the gold in the premises of Shri. Vinjuda. This renders the fact of recovery of gold itself doubtful and hence the association of the appellants with the said smuggled gold cannot be proved so as to make them liable to penalty.
5. The defence plea of the appellants has been exhaustively dealt with by the Commissioner in his adjudication order. The appellants are disowning any connection with the gold or the fact of seizure of such gold. Notwithstanding this, it is seen that, the search of the house of Slid Vinjuda was earned out in the presence of Shri Solanki (appellant No. 1). In fact, the departmental officer had no intelligence on Shri Vinjuda. It is only through the statement of Shri Solanki, that the officers got to know that, the gold has reached the residence of Shri Vinjuda. So mere retraction of the statement cannot help the appellants in any way for the reason that the truth about the recovery of smuggled gold from the premises of Shri Vinjuda, during which both Shri Vinjuda and Shri Solanki were present remains an established fact. The fact that Shri Solanki could lead the officers to the gold concealed in Shri Vinjuda's residence is sufficient to prove that he (Solanki) had knowledge that the said gold was of smuggled nature and was liable to confiscation. There is no explanation from Shri Solanki as to for what reason he had led the officers to the residence of Shri Vinjuda, if not for recovery of smuggled gold, which he himself had removed from the Air India Flight. This overwhelming documentary evidence is sufficient to corroborate the facts enumerated in the appellant's statement and there is no contrary evidence to demolish the said evidence. Therefore, there is full justification for imposing penalty under Section 112 as held by the Commissioner.
6. So far as the penalty imposed on Shri Godambe is concerned, it has come on record that, he along with Shri Solanki had boarded the Flight AI-710 arrived from Dubai on 30/10/93 at 2300 hours as per the records of the security staff of Air India. They were also identified by the security staff before the Air Intelligence Unit officers. As already discussed above, the role of Shri Solanki in transporting the gold from Airport to the residence of Shri Vinjuda has been established. It is also established that the Air India vehicle Maruti Gypsy bearing registration No. MH-02-K-4745 was used for boarding the aircraft by Shri Godambe and Shri Solanki. The fact that the smuggled gold has been recovered from the residential premises of Shri Vinjuda and it was Shri Solanki who took the officers to premises of Shri Vinjuda, shows that Shri Solanki and Shri Godambe's trip in the Maruti vehicle up to the aircraft and return was obviously for the purpose of removing the gold from the aircraft and its eventual transportation to the residence of Shri Vinjuda.
7. In the defence, it is claimed there is no evidence to link up the import of the gold through AI Flight 710, boarded by Solanki and Shri Godambe. Nor there is any evidence about the two being concerned with the transporting the alleged smuggled gold from the said aircraft to the residence of Shri Vinjuda to attract penalties. This defence is quite hollow as held by the Commissioner. It is obvious that Shri Solanki could not have removed the gold from the aircraft without the support of transportation given by Shri Godambe in the Maruti Gypsy belonging to the Air India. The movement of the said vehicle to the aircraft, the boarding of the aircraft by Shri Godambe and Shri Solanki are well documented. The statement of Shri Solanki mentions the removal of 92 gold bars wrapped in cloth from the aircraft, and seizure of the gold of the said description prove the fact that Shri Godambe had provided critical logistic support to carry out the operation.
8. It is true that the statement of the co-accused is a week evidence without independent corroboration. However, in the facts and circumstance of the case, even this evidence could not be altogether discarded. In this case, I note that the statement given by Shri Solanki independently brings out the entire chain of events occurring from the point of boarding the flight till the point Shri Solanki was apprehended. The same events are more or less corroborated in the statement of Shri Godambe. The version appearing in the statement of Shri Solanki regarding the removal of gold and its transportation to the residence of Shri Vinjuda is corroborated by the fact that 92 gold bars wrapped in two cloth bundles were indeed recovered from the residence of Shri Vinjuda. A boarding card recovered from the residence of Shri Vinjuda confirmed that Shri Vinjuda had travelled by the said flight and admitted that he (Vinjuda) brought the gold in the said flight. No other evidence regarding the source of gold seized from Vinjuda's residence is even alleged by anyone. Therefore, notwithstanding the retractions of the statement, having precisely described the quantity of the gold and the description of the package which matched with the seizure made at the residence of Shri Vinjuda shows that, Shri Godambe had full knowledge about the smuggling of the gold and he also took an active role in transporting the said gold from the aircraft to its initial place of hiding in the grass. Therefore, the ingredients contained in Section 112 (a) and (b) of the Customs Act, are attracted and Shri Godambe was rightly penalised by the Commissioner.
9. In view of the discussions above, I hold that the appeals filed by both the appellants are without any merits and the same are rejected.
(Pronounced in Court on 29/4/04)