1. All the three appeals are being taken up together for disposal is they arise out of the same set of facts and circumstances, which as briefly narrated are as under:- 1.1 On 29.8.94 customs officers at Calcutta airport customs detected one suitcase containing electronic goods of foreign origin worth Rs. 6,77,1740-. The said suitcase was incoming baggage of Thai Airways flight no.3G-313. Inasmuch as nobody picked up the said suitcase, airways authority were made a request to give the name of the person who got t he said baggage booked with them under the tag attached to the said baggage. It so transpired that the said baggage was brought by Mr. Thomas Gomes. His address etc. was found out from the passport authorities and his residential premises were searched on 1.10.94.
During the course of search of his residential premises some incriminating documents were recovered. Shri Thomas Gomes in his statement made before the customs authorities revealed that he was working for one Mr. Vijay Chatlani and the goods in question were given to him by one Mr. Sharma of Hongkong at the directions of Shri Chatlani, whose trustworthy person Mr. Mukesh was to contact him at the airport after clearance. He gave the physical particulars of Mr.
Chatlani, but submitted that the name or address of the shop of Mr.
Chatlani is not known to him.
1.2 As a result of the disclosure made by Shri Thomas the residential premises of Shri Vijay Chatlani were put to search. 12 bottles of Scotch Whisky along with some documents were recovered from the said residential premises. Inasmuch as Shri Vijay Chatlani was not at his residence at the of search. Mrs. Priya Chatlani, wife of Shri Chatlani made a statement before the officers on 1.10.94. Subsequently summons were issued to Shri Vijay Chatlani number of times, who did not respond. His premises were again put to search on 22.10.94 and documents showing the phone cards of Hongkong and Singapore were recovered and seized. Efforts of the customs to trace Shri Vijay Chatlani for recording his statement failed. Ultimately Shri Vijay Chatlani in response to summons issued on 5.12.94 sent a letter to the effect that he did not know Mr. Gomes and has no connection with the seizure of computer and electronic parts at the airport on 29.8.94. As regards the seizure of 12 bottles of Whisky from his residence, he stated that the same were gifted to him by his friends and relations at the the celebration of his first marriage anniversary and also on the occasion of his daughter's birth.
1.3. In the meanwhile, proceeding ahead with the investigation, residential premises of one Shri Tapan Ch. Sen Rai were also searched on 19.10.94. As per the evidence on record, as soon as the officers entered the premises of Tapan Ch. Sen Rai, he surreptitiously threw out a polythese bag form his bedroom window in the adjacent courtyard which was recovered by the officers and found to contain incriminating documents. The statement of Shri chandra Sen Rai was also recorded, in which he deposed that he was working as a carrier agent of Shri Vijay Chatlani. He gave details about his trips made to Singapore in the last 2-3 months. He said that on 13.3.94, he came from Singapore with only one hand baggage and the goods were sent by unaccompanied baggage which was cleared from airport on payment of duty of Rs. 8,000/-. He further deposed that on 4.4.94 he again left for Hongkong by Thai flight on the instruction of Shri Vijay Chatlani and come back with the various goods arranged by his friends at Hongkong. At Calcutta airport it was found that the value of the stones which he had brought was much more than declared by him and the said case is going on with the customs authorities.
1.4 Based upon the above facts the appellants were issued a show cause notice proposing confiscation of the seized goods and imposing personal penalties upon the appellants. The notice was adjudicated by Deputy Commissioner of Customs, vide which he confiscated the computer and electronic items with option to shri Thoms Gomes to redeem the same on payment of redemption fine of Rs. 3,50,000/- (rupees three lakh fifty thousand) and on payment of duty. Further a personal penalty of Rs. 1,00,000/- (rupees one lakh) was imposed on Shri Thomas Gomes. 12 bottles of whisky recovered from the residential premises of Shri Vijay Chatlani were also confiscated absolutely along with imposition of personal penalty of Rs.1 ,50,000-(rupees one lakh fifty thousand) on Shri Vijay Chatlani. Personal penalty of Rs. 50,000/- (rupees fifty thousand) was imposed upon Shri Tapan Ch. Sen Rai. Appeal against the above order did not succeed before Commissioner(Appeals). Hence the present appeal.
2. I have heard S/Shri B.N. Chattopadhyay, P.K. Ghose, ld.consultants and S.C. Rudra, ld. adv. for the appellants and Shri V.K. Chaturvedi, ld. SDR for the Revenue.
3. The contention of Shri Thomas Gomes is that he could not clear his baggage from the customs on the day of his landing inasmuch as the same was mis-placed. He lodged a complaint with the Thai Airways as regards the mis-placed by baggage by sending them a letter dt. 3.9.94. He submits that the goods in question are not banned items and he was entitled to import the same on payment of duty. The very fact that the adjudicating authority has allowed the redemption of the same shows that the goods were not banned or prohibited and the same could be imported as baggage and cleared on payment of duty. The goods were still within the premises of airport authorities and no effort has been made by the said appellant to clear the same. Reliance on the statements made by the appellants was not justified inasmuch as the same were retracted and was extracted by the appellant on the basis of false promises etc..
4. Similarly on behalf of Shri Vijay Chatlani, it has been argued that the entire case has been made out against him on the basis of statements of Shri Thomas Gomes and Shri Tapan Ch.Sen Rai. There are obvious contradictions in the statements of Shri Thomas gomes. At one point he says that he has made a number of trips to Bangkok as carrier of Shri Chatlani for the last two years. At the other place, when specifically asked as to how many times he carried such computer parts in huge quantity earlier, he states that it was his first time when he was carrying goods for the appellant. Similarly Mr. Gomes in his statement has said that neither the appellant nor his man Shri Mukesh had enquired about the goods even up to 1.10.94. The appellants' contention is that if he was making trip on behalf of the appellant, it is unbelievable that the appellant would not have enquired about the goods brought on his behalf. It has been argued that the said statements in any case have been specifically retracted and being in the nature of statement of co-accused cannot be made the basis for penalising the appellant without valid and independent corroboration.
Reliance has been placed on a number of decisions of the Tribunal. It has also been argued that Shri Gomes was not allowed to be cross-examined and as such his statement taken at the back of the appellant cannot be considered as a valid evidence for deciding the case. Similarly the statement of Shri Tapan Ch. Sen Rai cannot be considered as valid evidences without corroboration from independent sources.
5. As regards the bottles of Whisky, it has been contended that the same were gift items and were covered by the provisions of section 11G of Customs Act, 1962. The same being for personal use cannot be seized on the ground of illegal importation.
6. Shri Tapan ch. Sen Rai has challenged imposition of personal penalty upon him on the ground that he in no way connected with the seizure of computer parts and electronic goods; that his statements were recorded under duress; that in any case he had presented his baggage to the customs officers and cleared the same on payment of redemption fine of Rs. 8,000/- during the previous trip; that similarly the stones imported by him were over-valued by the customs officers and the case is under going adjudication; that the imposition of personal penalty upon him in respect of the luggage brought during his previous visit was not justified.
7. After giving my careful consideration to the submissions made by the appellants I find that admittedly the suitcase containing computer and electronic items was not attempted to be cleared by Shri Thomas Gomes from the airport without payment of duty. The entire dispute centres around the fact that whether the same was mis placed thus compelling the appellant to leave the airport without said baggage or the same was intentionally not cleared by the appellant. The very fact that the adjudicating authority has allowed the appellant to clear the same on payment of duty and on redemption fine of Rs. 3,00,000/- shows that the said goods wee entitled to be cleared on payment of duty. Though leaving of the airport without the luggage by the appellant, creates some doubt against him, but the very fact that the suitcase was still in the premises of the airport and was not attempted to be cleared without payment of duty goes in his favour. The appellant have also explained that he could not make any written complaint to the Thai Airways as regards mis-placement of his baggage on 3.9.94 inasmuch as he was down with fever is sufficient to extend the benefit of doubt to him. Accordingly I set aside the confiscation, by extending the benefit of doubt to the appellant. The said goods would be cleared by him on payment of appropriate duty of customs. For the same reasons penalty of Rs. 1,00,000/- (rupees one lakh) upon the said appellant Shri Thomas Gomes is also set aside.
8. As regards the imposition of personal penalty on Shri Vijay Chatlani I find that the same is based upon the untested testimony of co-accused, which is not worth-reliance inasmuch as the same is self-contradictory at number of places, as already recorded in the preceding paragraphs. There is no positive evidence on record that Shri Vijay Chatlani was the person behind the importation in question. As regards the 12 bottles of Whisky confiscated by the adjudicating authority I find that the same were recovered from the residential premises of the appellant and cannot be said to be in commercial quantity. The same are thus protected by the provision of Section 11G of the Customs Act. In this view of the matter I set aside the confiscation of Whisky and the imposition of personal penalty on Shri Vijay Chatlani.
9. As regards imposition of personal penalty of Rs.50,000/-(rupees fifty thousand) on the other appellant Shri Tapan Ch. Sen Rai, I find that the same has been imposed upon him in respect of some past clearances of goods made by him. However, it is on record that on the two occasions he visited Hongkong, the goods brought by him were presented before the customs authorities and cleared on payment of duty. In one case the value of the goods was enhanced and the case is under adjudication. In any case there is no connection of the said appellant with the computer and electronic goods involved in present case and as such the imposition of personal penalty upon him is not justified. The same is accordingly set aside.