Customs, Excise and Gold Tribunal - Calcutta
Shri Ganesh M. Verma @ Ganesh Karel vs C.C. (P), Mumbai on 16 January, 2001
Equivalent citations: 2001(75)ECC134, 2001ECR160(TRI.KOLKATA), 2001(137)ELT628(TRI-KOLKATA)
ORDER
Dr. S.N. Busi
1. This appeal is directed against the Order-in-Original No.S-14/6-8/92 /DRI/BZU/115/31/92 dated 6.6.94 of Collector of Customs (Preventive), Bombay (now Mumbai) in which 40,000 US Dollars (equivalent to Indian currency Rs.12.,80,000/-) were confiscated under Sections, 111(d) and 121 of the Customs Act, 1962 and imposed a penalty inter alia on the appellant Shri Ganesh Karel alias Ganesh Meghraj Verma of Calcutta (now Kolkata) under Section 112 ibid.
2. The matrix of the case is that on a specific information the officers of the Directorate General of Revenue Intelligence apprehended Shri Dilip Kumar Rangalal Verma of Kolkata in room No.208 of Hotel Hira, Bombay and recovered 40,000 US Dollars from his possession. In his statement dated 13.11.92 Shri Dilip Kumar explained that one Shri Chandraprakash Jalan of Calcutta gave him 27 foreign marked gold bars for the purpose of carrying the same to Bombay on a consideration Rs.2000/- plus to and fro travel charges. Accordingly, he reached Bombay by train on 10.11.92 and checked in hotel Hira in the assumed name of Shri U.S. Sharma as instructd by Shri Chandraprakash Jalan. One person who indentified himself as the man of Shri Chandraprakash Jalan room in the morning of 13.11.92 to whom he delivered the said gold bars. By evening the said person went back to him and handed over 40,000 US Dollars as the sale proceeds of the said gold bars with instruction to carry the same to Calcutta for delivery to Shri Chandraprakash Jalan.As he was getting ready to leave for Calcutta, the officers of the DRI searched the Hotel room and recovered the said foreign currency from, his possession.
2.1. During the coruse of investigation, it was noticed that Shri Dilipkumar frequently contacted certain telephone numbers at Bombay. Further probe revealed that the person with whom Shri Dilipkumar had telephonic conversations was Shri Dinesh Kumar Hastimal Manigotta @ Jain of M/s Mahindra Jewellers, Dadar.Another statement recorded from Shri Dilip KUmar on 16.11.92 had come to light that he gave the wrong name and address of the person who gave the gold bars to him at Calcutta. He gave the correct name of that person as Shri Ganesh Meghraj Verma, 8, Ist Haspukaria Lane, Calcutta-7 with telephone number as 398333. He added Shri Ganesh used to get the contraband gold from one Shri Rajsingh of Kathmandu, Nepal whose telephone number was 270724. He identified the photograph of Shri Dinesh Hastimal Jain and confirmed that he had given the said 27 foreign marked gold bars to him and got 40,000 US Dollars in exchange on 13.11.92. In connection with the above dealing, as instructed, he gave Rs.10,800/- to Shri Dinesh as his commission.
2.2. In his statement dated 16.11.92, Shri Dinesh corroborated the statement dated 16.11.92 of Shri Dilip Kumar and added that one Shri Rajsingh of Kathmandu had been engaged in smuggling of gold from, Nepal which was being recovered by Shri Ganesh Meghraj Verma of Calcutta. He had also struck a deal with Shri Rajsingh for disposal of contraband gold received through Shri Ganesh Meghraj Verma for which Shri Rajsingh offered him Rs.400/- per gold bar for its disposal. He further stated that on 5.11.92 also he disposed off 14 foreign marked gold bars sent to him by Shri Ganesh through Shri Papu and in return handed over 20,000 US Dollars at the same Hotel. In his further statement dated 23.11.92, Shri Dinesh Kumar confirmed his statement dated 16.11.92.
2.3. Shri Ganesh admitted that telephone number 398333 was installed in his premises but denied any business relationship with either Shri Manoj Adeshra or Shri Sanjay Agarwal alias Sarawgi or Dilipkumar.
2.4. A Show-cause Notice dated 24.2.93 was issued proposing confiscation of the said 40,000 US Dollars under Section 111 and Section 121 ibid and imposition of penalty under Section 112 ibid on S/Shri Dilipkumar, Dineshkumar and Ganesh. The adjudication proceedings resulted in confiscation of the said foreign currency and imposition of penalties of Rs.1,50,000/-, Rs.1,50,000/- and Rs.25,000/- on S/Shri Ganesh Meghraj Verma alias Ganesh Karel, Dineshkumar Hastimal Wanigota alias Jain and Dilipkumar Verma respectively. This appeal has been filed by Shri Ganesh against the impunged order.
3. Shri K.P. Dey, learned Advocate appearing for the appellant, submits that except the statement of co-accused no evidence has been adduced against the appellant that he supplied the gold bars for disposal at Bombay. He further submits that the finding of the Commissioner that the foreign currency involved in this case represented the sale proceeds of the gold was based on assumption and surmise. He pleads that the onus of proof is on prosecution to prove that the said foreign currency was sale proceeds of the contraband gold.The Department, according to him, failed to discharge that burden cast on them. The learned Advocate refutes the observation of the Commissioner to the effect that the appellant was involved in previous transactions of similar nature and argues that not even a single case (effected by any of the law enforcing agencies either at Bombay or Calcutta) could be cited in which the appellant was involved. In any case, past conduct cannot be used against the appellant. In this connection, he relies on the judgement of the Hon'ble High Court of Madhya Pradesh in Tejpal Jain vs. Union of India reported in 1995 (57) ECR 452 (MP) and the decision of the Tribunal in Commissioner of Customs (Prev.), Calcutta vs. Rajit Ghosh Alias Rana Ghosh reported in 1998 (104) ELT 349 (Tribunal), He further argues that reliance on the statement of Shri Dineshkumar without corroboration by independent evidence is improper and illegal. He, therefore, pleads that imposition of penalty of Rs.1,52,000/- on the appellant is unsustainable and as such deserves to be set aside.
4. Shri R.K. Roy, learned JDR appearing for the Revenue, reiterates the reasoning contained in the order impugned. He argues that the statement of co-accused can be used against the appellant as it clearly inculpates not only himself but also the appellant. In this connection, he relies upon the judgement of the Hon'ble Supreme Court in Naresh J. Sukhawami vs. Union of India reported in 1996 (83) ELT 258 (SC). He further argues that Department is not required to prove its case with mathematical precision but what is required is the establishment of such a degree of probability that a prudent man may on its basis belive in the existence of the facts in issue. In this regard, he relies upon the judgement of the Hon'ble Supreme Court in Collector of Customs, Madras and others vs. D. Bhoormul reported in 1983 ELT 1546 (SC). The learned JDR also refers to the judgement of the Hon'ble Supreme Court in Romesh Chandra Mehta vs. State of West Bengal reported in 1999 (110) ELT 324 (SC) to substantiate his argument that any statement made before a Customs Officer is admissible in evidence and not hit by Section 25 of the Indian Evidence Act.
5. On a careful consideration of the submissions from both sides and an perusal of the evidence on record, I find that the statement dated 16.11.92 of Shri Dilipkumar, which is admissible in evidence, is corroborated by the statement of Shri Dilipkumar. I am not inclined to accept the contention of the appellant that this is a case of no evidence. I find that there is enough circumstantial evidence to clear probability that the appellant was the person who sent Shri Dilipkumar to Bombay for disposal of the 27 contraband gold bars and it is established beyond doubt that the foreign currency involved in this case is the sale proceeds of the said gold bars. In view of this, I reject all the pleas of the learned Advocate. Accordingly, I do not find any reason to interfere with the order impugned and as such reject the appeal.
6. In the result, the appeal is rejected.
(Pronounced in the Court)