Customs, Excise and Gold Tribunal - Calcutta
Jahed Mondal And Abdul Jalil Biswas vs Commissioner Of Customs (Preventive), ... on 8 November, 2001
JUDGMENT
Archana Wadhwa
1. After dispensing with the condition of predeposit of personal penalties of Rs. 25,000/- imposed on each of the appellant, I take up the appeals itself for disposal.
2. As per the facts on record on 7.6.97, the Officers of Beharampur Customs intercepted one Motor Cycle being driven by one Shri Bablu Biswas. On interrogation, he confessed that one pc. of gold of foreign origin was kept concealed in the inner pocket of his shirt. As the said person could not produce any documents in support of legal acquisition and possession of the gold biscuits, the same was seized by the Customs Officers along with Motor Cycle.
3. The said Bablu Biswas in his statement dated 8.6.97 deposed that the Motor Cycle in question belonged to Jahed Mondal, the appellant herein and he was driving the Motor Cycle and Bablu Biswas was sitting back side. However, on seeing the Motor Cycle, Jahed Mondal stopped the vehicle and handed over the gold biscuits to Bablu Biswas and told him to wait so that Jahed Mondal might relieve himself nearby. But when he saw the Maruti Car was approaching them, Jahed Mondal told Bablu to go alone with the Motor Cycle.
4. Based upon the above confessional statement of Bablu Biswas, post seizure investigation were made. It turned out that the Motor Cycle in question belonged to Abdul Jalil Biswas. Shri Abdul Jalil Biswas in his statement admitted having been permitted Bablu to use his Motor Cycle for bringing medicines from Beharampore. However, there is nothing in the said statement to show that Jahed Mondal was also along with Bablu Biswas.
5. Shri Jahed Mondal did not response to the summons issued in terms of Section 108 of the Customs Act, 1962. He forwarded the petition through Notary Public stating that he was innocent and was in no way involved in the instant case.
6. Based upon the above facts, the show-cause notices were issued, inter-alia, to the appellants. The said show-cause notice was adjudicated upon the Deputy Commissioner of Customs, Calcutta, who apart from the absolutely confiscating the gold in question, confiscated the Motor Cycle with an option to the owner to redeem the same on payment of redemption fine of Rs. 5,000/-. In addition, the personal penalties were imposed upon Shri Bablu Biswas as also upon the present two appellants. Appeals against the above order did not succeed before the Commissioner of Customs (Appeals).
Hence the present appeal.
7. I have heard Shri K. Chatterjee, ld. Consultant and Shri P.N. Sen, ld. Advocate appearing for the appellants and Shri A.K. Mondal, ld. JDR and Shri D.K. Bhowmik, ld. JDR both appearing for the Revenue.
8. After going through the impugned order, I find that the penalties have been imposed upon Shri Jahed Mondal based upon the statement of Bablu Biswas who was intercepted by the Customs Officers and from whose possession one gold biscuit has been recovered. The appellants have strongly contended that the said statement of co-accused cannot be made the basis for penalising the appellants without any independent corroboration from any other source. They have also pleaded that the facts as narrated in the statement of Bablu Biswas are only fabricated inasmuch as it is not possible for any person to hand over the biscuit immediately on seeing from a distance one Maruti Car, for which the appellants could not entertain a view that the Customs Officers are present in the said Car. It is also seen that the gold biscuit in question was kept concealed in the inner pocket of Bablu Biswas. The appellants' contention is that it is not possible for any person to conceal the biscuit in the inner pocket within a short span of time. As such, their plea is that Bablu Biswas has named the appellant only to implicate him falsely. It is further argued that non-appearance in response to summons cannot be a factor or criteria in determining the guilty/conduct of the appellants. For this proposition, reference has been made to the Tribunal's decision in the case of Jaswinder Singh v. Collector of Customs, New Delhi reported in 1996 (83) ELT 175 (Tribunal). The appellants have also contended that he did appear in the Customs House on two occasions but as the Customs Officers were not free, he was told to come on the next date.
9. Shri Abdul Jalil Biswas has challenged the confiscation of the Motor Cycle and imposition of personal penalty upon him by contending that the Motor Cycle was given by him to Bablu Biswas for bringing medicines from Beharampur. He did not know that the said Motor Cycle would be used by Bablu Biswas for illegal activity of transporting the gold biscuit. It is further argued that there is nothing on record to show that the said appellant knew about the activity of smuggling by Bablu Biswas. The said appellant has also not been named by Bablu Biswas.
10. The Deputy Commissioner of Customs in his impugned order while imposing penalties upon the said appellants have observed as under:-
"As regards Jahed Mondal alias Jahidul Islam Biswas and Abdul Jalil Biswas, the other noticees have submitted their defence replies both dated 12.9.98 wherein they have denied their all allegations. I find from the case records that Abdul Jalil Biswas was the school teacher who gave his Motor Cycle to Shri Bablu Biswas for his personal use. It is clear from the confessional statement that Shri Bablu Biswas used to come to their residence usually and was closely related with them has stated by Bablu Biswas in his confessional statement. It is very clear that both of them Shri Bablu Biswas and Jahed Mondal were engaged in the smuggling and carrying of gold biscuit and Abdul Jalil Biswas knew their activities of smuggling which he has suppressed in his statement. Under the facts and circumstances as above, they are guilty conscious and are clearly liable to penalty under Section 112(b) of the Customs Act, 1962."
11. Reading of the above paragraph shows that it is only the confessional statement of Shri Bablu Biswas which has been made the basis for penalising the appellant. The fact that Bablu Biswas was closely known to the appellant and has used the Motor Cycle belonging to the appellant, Shri Abdul Jalil Biswas cannot be made the basis for arriving at the conclusion against the appellant. The ratio of the various case laws relied upon by the ld. Advocate are to the effect that confession of co-accused is not sufficient unless corroborated by other evidences. There is no independent evidence showing the involvement of the appellants. Even as per the statement of Bablu Biswas, Motor Cycle was taken by him from Shri Abdul Jalil Biswas by representing that the same was to be used for buying medicines from the market of Baherampur. As such, I find that there is also no justification for confiscation of the Motor Cycle in question. Accordingly, both the appeals filed by the appellants are allowed with consequential relief to them.
(Pronounced)