Customs, Excise and Gold Tribunal - Tamil Nadu
N. Namdev vs Commissioner Of Cus. And C. Ex. on 3 August, 2001
Equivalent citations: 2001(134)ELT704(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This appeal has been filed by the appellant alone against the Order-in-Appeal Nos. 40 & 41 /94, dated 29-4-1994 which is a common order. The Order-in-Appeal is emerging from OIO No. 27/93-DC, Tuticorin, dated 18-8-1993. By this Order-in-Original, the Dy. Commissioner confirmed the absolute confiscation of primary gold biscuit valued Rs. 2,12,504/- under Section lll(d) of the Customs Act. He has also imposed penalty of Rs. 10,000/- on Vijaya Kumar and Rs. 20,000/- on the appellant. Appellant gave a statement on 21-3-91 which is recorded in Para 7 of OIO which is reproduced below : -
"7. Shri Namdev, in his statement dated 21-3-91, inter alia deposed that he purchased the silver bar under seizure from Bombay through a broker; that he did no have any documents or accounts for the silver bar; that he knew Shri Vijayakumar of Karur; that he had purchased primary gold from the said Vijayakumar previously; that on 20-3-91, a phone call from Vijayakumar came; that Vijayakumar informed him about the purchase of the 5 gold biscuits at Kerala and told that he wanted to sell the same to him (Namdev); that he (Namdev) was waiting for Vijayakumar; that Vijayakumar did not turn up; that he came to know about the seizure of 5 gold biscuits from Vijayakumar only at the time of officers' visit to his refinery."
2. Learned Original Authority has taken a view that Shri Namdev was involved in the smuggling activities in terms of the above statement which is voluntary and there was a clear indication on the part of Vijayakumar to sell the gold bars to him and as such the charge of his involvement and smuggling was proved and is liable for penalty under Section 112 of the Customs Act. The Commissioner (Appeals) has upheld this finding. Hence this appeal.
3. Ld. Counsel Shri A. Thiagarajan submits that except this statement there is nothing on record to show the involvement of the appellant in either smuggling of the gold or bringing the gold within the boundaries of the Indian territory. He submits that appellant is not connived with real smugglers and smuggled seized gold biscuits. The department has proceeded on the basis of the statement that he was waiting for Vijayakumar to receive the gold. He submits that this amount of statement is not sufficient to uphold the guilty and to impose penalty. Even if the person was waiting to receive gold or currency and if the transaction is not completed, then it cannot be said that he was involved in the act of smuggling. He contends that this was the view expressed by the Apex Court tinder the Constitution Bench in the of Additional Coll. of Customs, Calcutta v. Sitaram Aggarwala reported in 1999 (110) E.L.T. 185 (S.C.) wherein the Apex Court has laid down the preposition that merely because an accused was having currency and was to buy foreign gold biscuits that by itself will not prove the of appellant being guilty of the offence. Ld. Counsel submits that this ratio clearly applies to the facts of the although the said judgment was rendered under the previous provisions of Section 167(8) of Sea Customs Act, 1878 in correspondence to Section 112 of the Customs Act, 1962. He submits that same provision has been incorporated under the Section 112 of the Customs Act, 1962 and the ratio of the Constitutional Bench stands for application in this also.
4. Ld. DR points out to Paras 4 to 7 of the Apex Court judgement and submits that in that , the Apex Court had clearly noticed that Sitaram Aggarwala was in any way concerned in the act or acts leading to the importation of smuggled gold. However upheld the High Court's finding on the interpretation of Section 167(8) of Sea Customs Act by which they noted that if any person is even remotely connected or exchanged or consciously takes any step whatever to promote the object illegally bringing bullion into the country, then even if no physical connection is established between him and the thing brought, he will be guilty. He submits that the statement given by the appellant implicating himself is sufficient to prove guilty and therefore the imposition of Rs. 20,000/- penalty is very low compared to the value of the goods.
5. I have carefully considered the submissions made by the ld. Counsel and find that the judgement cited by him is against the appellant. In Paras 4 to 7 of the Apex Court judgment, the provisions of Section 167(8) of the Sea Customs Act, 1878 which is pari materia to Section 112 of Customs Act, 1962 has been analysed. The same is reproduced herein below :-
"4. Section 167(8) of the Act is a penal section the object of which is not only to prevent the evasion of the payment of duties but also to prevent smuggling of goods resulting in the depletion of foreign exchange and jeopardising the economic stability of the country. For that purpose it has to be given an interpretation to cover all those who aid and abet in these nefarious activities whether they are principals or accessories who assist the smugglers or supplement their efforts. The use of the words "concerned in" in Section 167(8) shows that a person may be concerned in the importation of smuggled gold, without being a smuggler himself contravening any of the provisions of the Foreign Exchange Act. Therefore the High Court was right when it observed that if any one is interested or consciously takes any step whatever to promote the object illegally bringing bullion into the country, then even if no physical connection is established between him and the thing brought he will be guilty.
5. The words of Sub-section (8) of Section 167 are fairly wide but on the facts proved, can a justifiable inference be drawn that Sitaram Agarwala was in any way concerned in the act or acts leading to the importation of the smuggled gold? The Courts below have rightly drawn the inference that there is no evidence to support Sitaram Agarwala being concerned in the importation of gold.
6. On behalf of the respondent Sitaram Agarwala it was argued that Section 167(8) is a general provision and the special provision dealing with the of the type which Sitaram Agarwala is accused of falls under Item 81 of Section 167. It is not necessary for us to go into that question because no charge under that provision was brought in this and in our opinion, the High Court was right in its judgment in regard to the facts of the and their being insufficient to bring the respondent Sitaram Agarwala within the words "concerned in".
7. We therefore dismiss this appeal. In the circumstances there will be no order as to costs."
6. As can be seen from the above finding, the Apex Court has clearly held that if any person is interested or consciously takes any step whatever to promote the object illegally bringing into the country, then even if no physical connection is established between him and the thing brought he will be guilty. This observation of the High Court has been confirmed in Para 5. However, in the facts and circumstances of the , it was noticed that Sitaram Aggarwala had no connection in the importation of the gold and therefore his appeal was allowed while upholding the principles laid down by the High Court. I notice that in this , there is clear connection of appellant's activity with the act of smuggling as he has implicated himself and in not resiling from his statement. He has clearly given the statement that he was to receive the gold biscuits when Vijayakumar was bringing and in the meanwhile, the department intercepted and arrested and taken the appellant before the Magistrate where also he did not resile from his statement. The gold was also seized from the person of Vijayakumar. Therefore, Vijayaku-mar's statement is corroborated that he was to sell the gold to the appellant. The ruling of the Supreme Court and the findings recorded which is extracted above clearly supports the Revenue's case and the contention of the ld. DR is correct. In view of amount of penalty being low, this Bench does not wish to interfere with the same, and there is no merit in the appeal and therefore same is rejected.