Judgment
1. The above appeals arise out of the order of the Commissioner of Customs, New Delhi by which he has confiscated absolutely 138 gold biscuits of foreign origin valued at approximately Rs, 72 lakhs, seized on 26.10.1993 from Maruti Car No. DL-IC-C 8460 at Singhu Border, Delhi, occupied by Naresh Kumar, confiscated absolutely the above mentioned car and imposed personal penalty of Rs. 10 lakhs on Naresh Kumar, Rs. 25 lakhs on Kulbir Singh, holding him to be involved in smuggling/carrying/keeping and selling gold and a penalty of Rs. 10 lakhs on Rajan Bhandari, who has been held to have connived with the above mentioned two appellants in transporting and dealing with smuggled goods.2. We have heard Shri Deepak Gandhi, learned Advocate appearing along with Ms. Pramila Kapoor, Advocate for all the 3 appellants and Shri M.M. Dubey, learned DR for the Revenue.
3. None of the appellants have claimed the gold and hence we are only required to deal with the liability to penalty of the 3 appellants.
4. The case of the Department is based upon recovery of the gold concealed in the rear right side door panel of the car and the statement of Shri Naresh Kumar, The statement of Sh. Kulbir Singh and Rajan Bhandari recorded on 1.12.1993 and 2.12.1993 are exculpatory in nature, and they do not implicate themselves. Shri Naresh Kumar has stated that Rajan Bhandari who is his friend introduced him to Kulbir Singh who had a transport business in Lajpat Rai Market and who was also a Partner of Greatneck Exports, that Rajan Bhandari persuaded Naresh Kumar to work with Kulbir Singh for greater benefit by smuggling of foreign marked gold biscuits brought by carriers from Pakistan to India via Pathankot, that Rajan Bhandari and he agreed to work for Kulbir Singh for which he was to receive Rs. 2000/- per trip, that about 4 or 5 months before the present incident, he went along with Rajan Bhandari to Pathankot where Rajan Bhandari introduced him to one Ram Lal Gupta alias Chacha and that Ram Lal Gupta handed over one VANSALI to Rajan Bhandari who concealed it in the rear right side door panel of the car which was then driven to Delhi and Kulbir Singh came and collected the gold and paid Rs. 5000/- to him (Naresh Kumar). About the incident on 26.10.1993, Naresh Kumar stated that on 25.10.1993, he left for Pathankot in the car under instructions of Kulbir Singh at 9.30 PM and reached Pathankot on 26.10.1993 at 6.00 AM; there he met Ram Lal Gupta who handed over one Vansali containing gold biscuits to him and he handed over a packet containing Rs. 1,25,000/- given to him by Kulbir Singh; that he concealed the smuggled gold given to him by Ram Lal Gupta in the rear right side door panel of the car which was intercepted at 1.30 PM at the Delhi border. He further stated that the car belonged to Kulbir Singh; but was later on transferred in the name of Deepak Saxena, the other partner of Kulbir Singh in M/s. Greatneck Exports. Learned Counsel disputes the recovery from Delhi border and submits that the gold was recoveivd from Naresh Kumar's residence and that the gold was legally imported into India and had been handed over to him for safe custody by his NRI friends--however, he has not been able to substantiate the contention regarding recovery from the residence and the panchnama clearly states that the recovery was from the car which was intercepted at the Delhi border. The affidavits and the customs receipts produced by Naresh Kumar along with his retraction on 15.11.1993 have been verified by the Customs authorities who have found that the addresses of four persons given by him were fictitious and summons were returned undelivered with the postal remarks "no such address is available", the 5th person named by Naresh Kumar i.e. R.K.Shetty denied filing of any affidavit and also having given any gold to Naresh Kumar. The sixth person V.K. Mohamed Kunhi was out of India at the time of enquiry, but one of his relatives stated that the signature in the affidavit was not that of Mohamed Kunhi and the 7th person viz.
S. Abdul Kadar Mohd. Shafi did not respond to summons in spite of repeated reminders. Although the Investigation Officer has stated in cross-examination that the baggage receipts were verified and were, found to be genuine, this does not automatically lead to the conclusion that the gold seized can be co-related to the gold covered by the baggage receipts and we see force in the DR's submission that the defence of Naresh Kumar that the gold seized was given to him in Delhi by NRls from Kerala is a cock and bull story. We, therefore, hold that Naresh Kumar has failed to discharge the burden cast upon him to prove that the seized gold biscuits were not smuggled into India and hence hold that he is liable to penalty. We, however, reduce the penalty imposed to Rs. 2 lakhs, on a consideration of the overall facts and circumstances of the case. As for Kulbir Singh, he has been penalised on the basis of the statement of Naresh Kumar which we hold to be a valuable piece of evidence which can be relied upon and hold that the retraction being belated, the original statement stands. His plea that the car used for bringing smuggled gold did not belong to him is also not correct as Deepak Saxena in whose name the car has been transferred has denied that he had applied for transfer of the car in his name (Deepak Saxena) and he has stated that the car was fraudulently transferred in his name by Kulbir Singh or Naresh Kumar. There is no force in the submission of the learned Counsel that Naresh Kumar has falsely implicated Kulbir Singh due to Kulbir Singh's repeated reminders to Naresh Kumar for payment of balance Rs. 35,000/-for the car in question (Naresh Kumar had paid only Rs. 60,000. The car price was fixed at Rs. 95,000/-). We, therefore, hold that Kulbir Singh was concerned with smuggled gold and that he has indulged in smuggling/carrying/keeping/ selling gold and is therefore, liable to penalty, but reduce the penalty to Rs. 5 lakhs.
5. Coming to Rajan Bhandari, the adjudication order does not disclose any basis for holding him to be involved in the present case--there is nothing to link Rajan Bhandari with the present seizure, and the statement of Naresh Kumar in respect of Rajan Bhandari's involvenient in smuggling on past occasions cannot be pressed into service by the Department to hold him liable to penalty in this case. We, therefore, set aside the penalty imposed on Rajan Bhandari.
6. In the result, we modify the impugned order relating to Naresh Kumar and Kulbir Singh by reducing the penalties to Rs. 2,00,000/- and Rs. 5,00,000/- respectively, and allow the appeal of Rajan Bhandari.