Customs, Excise and Gold Tribunal - Mumbai
Ramesh Mangilal Jain vs Cc (Prev.) on 27 January, 2000
Equivalent citations: 2000(93)ECR94(TRI.-MUMBAI), 2000(124)ELT299(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appeal is against the order of the Additional Collector imposing a penalty of Rs. 25,000/- on the appellant under Section 112(a) of the Act.
2. I have heard both sides.
3. The penalty was imposed on the finding of the Additional Collector that the appellant was the owner of the silver which was liable to confiscation under Clause (d) of Section 111 of the Act. The silver itself of which there is no claimant in the proceedings was seized from the premises of M/s Ardeshwar Mahdeo Steel, 11/2 lane Kamathipura in which at that point was occupied by Bhagwanji Purohit. Purohit, in his statement immediately after the seizure, said that the silver was brought and deposited on 13.8.1992 by someone whose name and address was not known to him. He said that he had received the silver for cutting into pieces for a consideration of Rs. 40/-. In a second statement recorded two days later, Purohit said that the silver was given to him by Ramesh Jain, who according to him, "35-36 years of age, is rather tall and of wheatish complexion." Ramesh Jain, whom he knew for two months, has a shop at 10th lane Kamathipura. He now said that he knew the metal is silver; he said that Jain left the shop five minutes before the Custom officers arrived, in order to bring a new blade for the cutting machine since the old one was broken. The officers had recorded the statement of Mangilal Jain, whose son is Ramesh Jain. Mangilal Jain denied any knowledge of seizure and said that Ramesh Jain had gone to home town in Rajasthan, where he fell ill. It is on the basis of these documents that the penalty has been imposed on Ramesh Jain. Ramesh Jain's statement was not recorded nor was he questioned.
4. I am not entirely satisfied with Ramesh Jain's innocence in the matter. His sudden disappearance and illness stated to be pyreyia which means nothing other than fever is rather suspicious. At the same time, however, there is insufficient evidence to relate Ramesh Jain to the silver. The two statements of Purohit do not inspire confidence. It is surprising that a stranger would leave in the custody of another person, who is nothing more than an acquaintance for three days silver valued at Rs. 5.00 lacs without even taking a receipt. It is equally surprising that Purohit would accept such silver. He was, after all only an employee and that too at a petty level. The investigating officers have not apparently bothered to check up the owner of the shop. There is not a mention about him in the notice or order. Further, Purohit's memory dramatically improves two days after his first statement. Now he is able to remember the name of the person whom he says knew for two months; interestingly says that he was there five minutes before the officers visited.
5. The significant variations in Purohit's statement requiring an explanation which is not provided. If, going by his first statement, he merely cut some pieces of metal given by someone, he could have named him straightaway. He could have told the officers that the person was there five minutes before; that he could not say this earlier and remember it subsequently strangely and lack credibility.
6. The statements of Purohit therefore in my view is without any corroboration are not enough to impose a penalty. In the light of the contractions in the statements, prudence required corroboration.
7. Even assuming that the second statement of Purohit is true, I am still not able to justify the penalty. He says that Ramesh Jain's shop is located at 10th lane Kamathipura. Mangilal, father of the appellant says that his shop is at Shankar Pupala Road, Kamathipura. On the face of it, the two are different areas and is not possible to say that Jain's shop is at 10th lane, Kamathipura. Again Mangilal Jain says his son is 25 years old, whereas Purohit says he was 35-36 years old. The rest of his description of Ramesh Jain which I have reproduced above is so vague as to fit a large number of people.
8. The third point which is to be considered is that it has not been shown that the silver has been smuggled into India. It is not notified under Section 125 of the Act. The burden of proving that it was smuggled which is on the department has not been discharged.
9. For all these reasons, I am of the view that there is insufficient evidence to penalise the appellant. I therefore allow the appeal and set aside the penalty.
Dictated in Court.