Full Judgment
2. Appellants filed this appeal against the adjudication order passed by the Commissioner of Customs whereby the penalty of Rs. 10 lakhs was imposed under Section 112 of the Customs Act.
3. Brief facts of the case are that on 16.5.1992 one Shri Rajendra Soni was apprehended with Indian currency of Rs. 21,23,050.00. Shri Rajendra Soni in his statement disclosed that the currency is the sale proceed of smuggled gold. The Currency was taken into possession. Thereafter, the statement of Shri Radhey Shyam Sharma was recorded and he in his statement stated that Shri Rajendra Soni and one Shri Ahmed Bhai came to the shop of the appellants and delivered the smuggled Gold Biscuits and the appellants after selling the Gold biscuits made the payment to Shri Rajendra Soni.
4. The adjudicating authority confiscated the India Currency worth Rs. 21,23,050.00 and imposed penalty of Rs. 10 lakhs on Shri Rajendra Soni and Kashi Prasad Soni (Present appellants).
6. The appellant is not claiming the seized currency. The contention of the appellant is that there is no evidence on record to link the present appellants with seized currency. Shri Rajendra Soni in his statement before the Customs authority never disclosed the name of the appellants. The adjudicating authority in the impugned order admitted that there is contradiction in the quantity of Gold biscuits in the statements of Shri Rajendra Soni and Radhay Shyam Sharma.
7. In these circumstances the appellants submits that the penalty imposed on appellant is not sustainable.
8. The Departmental Representative appearing on behalf of the Revenue reiterated the finding of the lower authority and relied upon the statement of Shri Radhy Shyam Sharma who was the employee of the appellants.
9. We find that in this case the India Currency was recovered from Shri Rajendra Soni. Shri Rajendra Soni in his statement dated 16.5.1992 inter alia admitted that the seized Indian currency recovered from his possession was sale proceeds of contraband foreign marked gold biscuits. He also admitted that he carried the sale proceeds of smuggled gold and silver several times and was getting Rs. 300 per Rs. 1 lakh as his remuneration for carrying the sale proceeds. It was also admitted by him in his statement dated 17.5.92 under Section 108 of Customs Act. 1962 that he had been residing in Bombay with his family where he worked as a goldsmith and used to carry foreign marked gold biscuits from one place to another for monetary gain. This brought him close to one Ahmed Bhai and he visited several places for delivery of foreign marked gold biscuits along with Shri Ahmed Bhai. Shri Rajendra Soni further stated in his statement dated 17.5.92 that on 13.5.1992 Shri Ahmed Bhati approached and gave him 45 foreign marked gold biscuits of 10 tolas each at Bombay. As per the directions of Shri Ahmed Bhai, Shri Rajendra Soni left Bombay keeping the said 45 foreign marked gold biscuits in a belt (Nauli) tied around his waist. He reached at Falna in Rajasthan at noon on 14.5.92 where Shri Ahmed Bhai met him and took 11 foreign marked gold biscuits from him and delivered to someone (not disclosed to Shri Rajendra Soni) at Falna in Rajasthan and after some time Shri Ahmed Bhai came to him and handed over Indian currency of Rs. 5,20,000; the sale proceeds of 11 foreign marked gold biscuits to him. Shri Ahmed Bhai directed him to reach at main Bus Stand. Jaipur on 16.5.92 with the remaining foreign marked gold biscuits and Indian Currency of Rs. 5,20,000. Shri Ahmed Bhai had left for Jaipur on the same day while Shri Rajendra Son had left for his native village Sadri, near Falna. On 15-5.92 Shri Rajendra Soni returned to Falna and from there he reached Jaipur by Bus at 6 AM on 16.5.92. At Jaipur Bus Stand Shri Ahmed Bhai again met him along with a person whose identity was not disclosed to Shri Rajendra Soni. Shri Ahmed Bhai directed Shri Rajendra Soni to move towards toilet with that person and to deliver the remaining 34 foreign marked gold biscuits to that person. Shri Rajendra Soni did the same was directed by Shri Ahmed Bhai. After that, Shri Ahmed Bhai handed over Shri Rajendra Soni one suitcase and disclosed that it contained Rs. 16 lakhs, the sale-proceed of 34 foreign marked gold biscuits. Shri Ahmed Bhai immediately left Jaipur for Bombay by air after directing him to board the evening flight to Bombay along with the India Currency of Rs. 21,20,000 (Rs. 5,20,000 + 16,00,000). Shri Rajendra Soni then purchased an Air Ticket No. 581/1761795 for flight No. IC 493 for 16.5.92 in a fictitious named of Dinesh Patel.
10. Thereafter the statement of one Radhey Shyarn Sharma was recorded who in his statement stated that he had been employed in M/s. Ram Narain Sriram Soni, Akchar Walom Ki Gali, Gopal Ji Ka Rasta, Jaipur for the last 10 days; that Shri Kashi Prasad Soni and Shri Ganshyam Soni were the proprietors of this firm which dealt in the business of gold and silver ornaments; that he delivered smuggled foreign marked gold biscuits to different parties 5 or 6 times on behalf of his master Shri Kashi Ram Soni; that he was used as carrier of contraband goods by Shri Kashi Ram Soni who himself operated this illegal work; that on 16.5.92 two persons by the name of Shri Ahmed Bhai and Shri Rajendra Soni came to the shop of Shri Kashi Prasad Soni and delivered foreign marked gold biscuits and asked to clear its payment by that very evening that Shri Ahmed Bhai told Shri Kashi Ram Soni that Shri Rajendra Soni would come to receive the payment; that Shri Kashi Prasad Soni explained the address of his residence to Shri Rajendra Soni and asked him to come at 4 P.M. at his residence; that he was informed by Shri Kashi Prasad Soni on 16.5.92 at night that Shri Rajendra Soni, to whom he had paid the money, had been apprehended by the Police with money at the Sanganer Airport, Jaipur after which Shri Kashi Prasad Soni was absconding.
11. From the above statement we find that Rajendra Soni had not named the appellant in his statement. Shri Ahmed Bhai was not joined investigation as he was not traceable. The only statement relied upon by the Revenue is of Shri Radhey Shyam which is not supported by the statement of Shri Rajendra Soni. Further, we find that adjudicating authority in the adjudication order admitted that there is contradiction in the statements of Radhey Shyam Sharma and Rajendra Soni in respect of penalty the foreign market gold biscuits. Shri Rajendra Soni in his statement never stated the fact that Shri Ahmed Bhai or Shri Rajendra Soni sold the smuggled gold to the appellants.
Therefore, we find that penalty imposed on appellants is not sustainable hence, set aside and the appeal is allowed.