Judgment:
1. This matter is being heard as per the directions of the Hon'ble High Court of Kerala in Writ Appeal No. 1625/98 dt. 30.10.98 allowing the prayer of the appellant for reconsideration of the several pleas made by him which according to the appellant had not been considered by the Tribunal. The Tribunal by Final Order No. 2040/97 dt. 4.8.97 had upheld the levy of penalty of Rs. 2 lakhs on the appellant imposed by the Commissioner by his Order-in-Original No. 7/91 dt. 11.2.91. On the basis of certain information and various investigations carried out by the authorities contraband gold valued over Rs. 9.5 crores were recovered from the Contessa Car No. KEZ-2028 and from the residential premises of one Shri N.K. Abdul Abdulrahiman. After the statements were recorded and show cause notice was issued and after hearing the appellant, the Commissioner had confirmed the penalty on this particular appellant to an extent of Rs. 2,00,000 which was appealed before the Tribunal. The Tribunal heard the appeal of the appellant which had challenged among various orders passed by the Commissioner in the Order-in-Original. The Tribunal had not found any infirmity in the Commissioner's order in imposing penalty of Rs. 2 lakhs on the appellant in view of the facts and circumstances of his involvement in the smuggling of large quantity of contraband gold valued over Rs. 9.5 crores.
2. Before the Hon'ble High Court of Kerala, the appellant had contended that it is the appellant who had given clear and precise information to the authorities for recovery of the contraband gold biscuits. In view of the information and assistance given by him, he was initially sanctioned an amount of Rs. 44 lakhs as advance reward vide proceedings No. DRI F. No. 42/1/2/89-Inv. dated 23.3.1989. He also contended that the balance amount of reward of Rs. 26 lakhs was also given to him subsequently thereby a total amount of Rs. 70,00,000 was given to him.
It was contended that these facts were not taken into consideration by the Tribunal while passing the final order. It had also been stated that he was the informer and because of that only, he was not implicated and these were not considered by the Tribunal. He had mentioned that his name did not appear in the arrest memo issued on 26.2.89. He was implicated in the case only after 7 months and no statements had been recorded from him; nor Mr. Sudir nor Mani who were alleged to have been went with ... him in the deep sea has mentioned his name. He had also stated that he had never travelled in the Contessa car. He was implicated by Abdulla on the suspicion that he had given information to the department. He had also stated that although he had given information and received the reward, he was implicated only subsequently as he was given rewards and these facts were not considered by the Tribunal. The Hon'ble High Court after hearing the appellant's Counsel has directed the Tribunal to examine his pleas made before the High Court which is likely to end in his being exonerated as there was no active part in smuggling the contraband goods.
3. We have heard Shri M. Ajay, Ld. Counsel and Shri S. Sankaravadivelu, Ld. DR.4. Ld. Counsel reiterates the contentions made before the High Court and submits that these points had not been raised before the Commissioner for the simple fact that appellant was under threat from the smugglers and he could not reveal for his own safety. However, subsequent proceedings from the record disclosed that he had received reward of Rs. 70 lakhs and, therefore, he cannot be implicated as he had no active role in smuggling but was acting for the Government of India in recovery of this contraband gold. As the records would disclose about his assistance to deptt. therefore the question of his being implicated does not arise. It is his contention that for imposing penalty there has to be motive for smuggling for personal gains and to evade the law. As he has assisted in recovery of huge amounts, he cannot be said to have motive to smuggle the goods or to contravene various provisions of Customs Act and, therefore, these facts not having been considered requires a fresh rehearing.
5. Ld. DR for respondent points out that these are fresh facts which had not been brought to the notice of the Commissioner. The Commissioner had proceeded on the basis of statements recorded by several persons which led to belief that appellant was involved in the action of smuggling of contraband goods. He submits that information given by the appellant before the High Court with regard to receipt of reward appears to be correct from the case records produced by the concerned officer for verification. He has also placed copies of those records. He points out that the Commissioner has given findings with regard to involvement of the appellant. He submits that the aspect pertaining to reward for giving information is independent of appellant's role in assisting smugglers and bringing contraband goods within the Indian source. Therefore, no fault can be brought about with regard to imposition of penalty by the Commissioner.
6. On careful consideration of the submissions, we notice that the Hon'ble High Court had directed the Tribunal to examine these aspects of the matter pertaining to disclosure of information to the authorities leading to the seizure of contraband goods and the appellants having been paid a reward amount of Rs. 70 lakhs. The original records pertaining to these proceedings are required to be examined and the said records are not before us. Although the records have been brought by the concerned officer, but we are of the considered opinion that nature of the records are such which are required to be examined by the original authorities at the first instance. These facts had not been disclosed by the appellant before the Commissioner fearing threat from the other accused person. These facts have been brought to the notice of the High Court and the High Court has directed for re-examination of this matter. Therefore, we are of the considered opinion that as the original records are with the Commissioner, it is but proper that original authority examine the appellant's plea more particularly in the light of the submission that he has received huge amounts as reward. The aspect pertaining to his connivance and his having carried out the motive to smuggle the gold in dispute also requires examination by the original authority in the first instance before the matter could be considered in appeal. Hence, we are of the considered opinion that the matter requires to go back to the Commissioner in so far as the appeal of this appellant is concerned. Appellant shall be heard in great detail and detailed findings to be given in view of the observations given by the Hon'ble High Court. Appellant shall have full opportunity to put forth his case including production of such other evidence as is required to establish his innocence in the matter. Thus, the appeal is allowed by way of remand.