Full Judgment
2. Facts in brief are that on 7th/8th July, 1999, the officers of Customs, New Delhi searched the godown of M/s. Point to Point Transport Quick Daily Parcel Service, situated at 209, Bhalaswa Village/Delhi and recovered 303 packages, which on opening found to contain ball-bearings, shoes, cardamom, audio and video cassettes, ten band radio sets with TV brand, Emergency lights, medicinal powder, Chinese silk cloth, all of foreign origin, collectively valued at Rs. 4,13,02,850. Shri Prashant Abbot, godwn keeper accepted the recovery of goods of foreign origin and could not produce any evidence showing lawful import or arrival of goods. His statement was recorded by the Customs officers where he gave the details of arrival of the goods in godown since 2.7.99 and delivery of the goods to different persons in Delhi. He stated that Kittu alias Shekar Juneja employed him on 2.7.99 as godown keeper and godown was taken on rent by Shri Shekar Juneja alias Kittu. He stated that Kittu started keeping the goods at Bhalaswa Village godown from 2.7.99 and Kittu had given him one mobile phone No.9811045726, on which he receive instructions from Kittu. All the 303 number of packages, which were found in the godown arrived from Nepal by road (truck) and he has received their at godown. No documents such as GRs, billties, bills etc. were received by him while accepting the goods. Kittu had told him the method of writing the arrival of goods to different persons in Delhi and he had adopted the same method while noting the arrival and despatch to different persons in Delhi in an exercise book which was recovered from the godown on 7.7.99. Shri Shekar Juneja alias Kittu was instructing him on mobile phone about the places where the goods were to be delivered and used to inform the currency note numbers of denominations of Rupees two, Rupees five and Rs. ten. He used to give details of currency notes and its number to driver who used to carry the goods from godown and the driver will bringing back the currency notes for depositing with him. These currency notes were also seized from him at the time of seizure. On the basis of statement of Shri Prashant Abbot and documents recovered, further investigations were carried out and the rooms situated at ground floor of House No. WZ 471/A/1 MS Block, Hari Nagar, New Delhi was searched where goods of foreign origin worth Rs. 61,44,000 were recovered under Panchnama dated 8.7.99. Shri Mithlesh Mohan Bakshi, occupant of the said premises stated that the goods of foreign origin recovered in 48 packages were given to him by Shri Subhash Agarwal and the premises was taken on rent. During investigations, statement of Shri Subhash Agarwal was also recorded, who had admitted his concern with seized smuggled goods. During investigation shop and residential premises of Shri Shekar Juneja was also searched but nothing incriminating was found there. Statement of various persons, namely the owner of the premises of 209 Bhalaswa Village, Delhi, tempo drivers who had taken the goods from this godown to the various Customers and delivered the goods to them were also recorded. Shri Chander Shekar Juneja was summoned for recording the statement but he did not appear for a long item and finally, he appeared before the Superintendent Customs on 15.5.2000 and his statements were then recorded on 15.5.2000 and 1.6.2000. After investigations, show cause notice was issued to Shri Chander Shekar Juneja alias Kittu and three others, namely, Shri Prashant Abbot, Shri Mithlesh Mohan Bakshi and Shri Subhash Agarwal asking them to show cause to the Commissioner, Customs, New Delhi why the seized goods recovered from the godowns at 209, Bhalaswa Village, New Delhi valued at Rs. 4,13,02,850 and the goods recovered from a room at WZ 471/A/1, MS Block Hari Nagar, New Delhi, should not be confiscated under Section 111 (d) of the Customs Act and penalty should not be imposed on them under Section 112 (a) and 112 (b) of the Customs Act. After giving the opportunity of hearing and considering the defence of the respondents notices, the Commissioner decided the show cause, confiscating the goods valued at Rs. 4,13,02,850 and goods valued at Rs. 61,44,000 seized during investigation. However, he allowed Shri Chander Shekar Juneja to redeem the same on payment of fine of Rs. 1.5 crores under Section 125 of the Customs Act. He also imposed penalty of Rs. 50 lakhs on Shri Chander Shekar Juneja alias Kittu under Section 112(a) and 112(b) of the Customs Act besides imposing penalty on other persons.
3. Shri Farook Razackm learned Advocate appearing for Shri Chander Shekar Juneja assailed the order of the adjudicating authority on the ground that in their reply to the show cause notice, they had clearly stated that Shri Chander Shekar Juneja and nothing to do with the seized goods and he is not the owner of the goods, nor concerned with the goods, despite that Commissioner allowed Shri Chander Shekar Juneja to redeem the goods on payment of fine of Rs. 1.5 crores and imposed penalty of Rs. 50 lakhs on him. He stated that Shri Chander Shekar Juneja and been implicated in the case by statement of Shri Prashant Abbot and it is supported by the statement of Shri Ajit Yadav, the landlord of the Bhalaswa godown and statement of Shri Inder Singh also implicates Kittu for having received the goods cleared from Bhalaswa godown. He stated that on the contrary, they have produced the evidence that on 30.6.99, there was altercation between Shri Chander Shekar Juneja and Shri Prashant Abbot. A police complaint was also lodged on 30.6.99 with Roop Nagar Police Station about this incidence of taking action against Shri Prashant Abbot by Shri Chander Shekar Juneja. Shri Chander Shekar Juneja was at Calcutta on 1st July, 1999 and 2nd July, 1999 as is evident from the affidavit of Abdul Hamid, Advocate and from the lease deed registered on 2.7.99. Shri Juneja remained at Calcutta as is apparent from the Power of Attorney registered on 5.7.1999 at Calcutta. He stated that the statement of Shri Prashant Abbot is incorrect statement. The document which were said to be written by Shri Shekar Juneja as stated by Shri Prashant Abbot in his statement dated 8.7.99, were subsequently found to be not written by Chander Shekar Juneja as per report of the handwriting expert obtained by the Department. He also stated that when on 30.6.99, there was altercation between Shri Prashant Abbot and Shri Chander Shekar Juneja, there was no question of Shri Chander Shekar Juneja employing Shri Prashant Abbot as godown keeper from 2.7.99. He also stated on 1st and 2nd July, Shri Chander Shekar Juneja was not in Delhi, as is apparent from the legal document furnished by him before the adjudicating authority. In such a situation, it was not possible for Shri Chander Shekar Juneja , to employ Shri Prashant Abbot as a godown keeper. He also stated that when Shri Chander Shekar Juneja was at Calcutta on 1.7.99, question of his going to meet Shri Ajit Yadav, landlord of premises at 209, Bhalaswa village, where the smuggled goods were found, does not arise.
Therefore, the statement of Shri Ajit Yadav is not correct that Shri Chander Shekar Juneja met him on 1.7.1999. He also pleaded that statement of Shri Inder Singh, tempo driver wherein it was stated that the person who took the delivery from the road side told him that Kittu has asked to tell Shri Prashant Abbot that Kittu took the delivery of the goods cannot be correct. Ld. Advocate pleaded that if the Kittu is stated to be the supplier of goods from the godown at 209, Bhalaswa village, the question of his taking delivery of the goods at Shakti Nagar, as stated by the tempo driver does not arise. Even if he has taken the delivery of the goods, he would not tell the tempo driver to tell Prashant Abbot that Kittu has taken the delivery of the goods when Kittu can himself telephonically inform Prashant Abbot. It was further pleaded that if Shri Ajit Yadav has met Shri Chander Shekar Juneja on 1.7.97 while renting out the godown, then Department could have established his identity by allowing examination of Shri Ajit Yadav in presence of Shri Chander Shekar Juneja and Shri Ajit Yadav could have identified whether the person who actually met him was Shri Chander Shekar Juneja or not. But no such identification was done nor opportunity of examining Shri Ajit Yadav was provided by the department. He relied on the decision of Supreme Court in the case of State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382 where it was held that identification of a presence by witnesses for first time in a Court, without being tested by a proper test identification parade is value less. He stated that none of these persons who had spoken that Shri Chander Shekar Juneja has rented out the godown had identified him before the departmental adjudicating authority. He stated that heresay evidence cannot be accepted that person who had hired the godown or from where the smuggled goods were seized was hired by Shri Chander Shekar Juneja. He relied on the decision of the Tribunal in the case of Sunil Ghosh v. Commissioner of Customs, Calcutta, 2003 (162) ELT 830.
He stated that from the handwriting expert opinion, it is clear that the document which were said to be written by Shri Chander Shekar Juneja, were not found to be written by him. Therefore, statement of Shri Prashant Abbot is not true. No incriminating document was recovered from the residence of Shri Chander Shekar Juneja during the search of his house and shop. Therefore, he cannot be held liable for any penalty. He relied upon the decision of the Tribunal in the case of Om Prakash Kulthia v. Collector of Customs, 1997 (91) ELT 684. He, finally, pleaded that Shri Chander Shekar Juneja was at Calcutta on 1.7.1999 is supported by evidence in the form of Affidavit of Shri Abdul Hamid and on 2.7.99, he had gone to Gangasagar and signed the agreement of lease on 2.7.99. Para 8 of this lease agreement also makes it clear that Shri Chander Shekar Juneja had paid Rs. 25,000 on 1.7.99 and further sum of Rs. 25,000 on 2.7.99 for due performance of the condition and the lessor has acknowledged the receipt of same from the lesseee on the date, month and year mentioned in this para. Thus, it clearly proves that Shri Chander Shekar Juneja had neither taken the godown on rent nor he had appointed Shri Prashant Abbot as godown keeper. Shri Chander Shekar Juneja before the adjudicating authority has clearly denied the ownership of the goods or any connection with the goods. Therefore, he cannot be held liable for any penalty under the provisions of Section 112 of the Customs Act.
4. He also referred to the findings of the Commissioner in para 8.2 of the Order where the Commissioner has came to the conclusion that despite distancing by Shri Juneja regarding phone, godown, the ground of enmity between him and Shri Abbot and the notarial statements indicating availability of Shekhar Juneja on 2.7.99 and 5.7.99, but these will be of little avail to him. He pleaded that Commissioner has not given reasons for disregarding these evidences. He also pleaded that telephone numbers which were given by Shri Prashant Abbot as used by Shri Chander Shekar Juneja were also not found belonging to Shri Chander Shekar Juneja as no inquiry report of ownership of such phones was indicated in the show cause notice and the adjudicating order. He therefore, pleaded that Shri Chander Shekar Juneja has nothing to do with impugned smuggled goods. Therefore, he is not liable for any penalty.
5. Shri S.M. Tata, learned SDR appearing for the revenue, reiterated the findings of the Commissioner.
6. We have considered the submissions made by both the sides. We find that to connect Shri Chander Shekar Juneja with the seized/confiscated goods the evidence against him is in the form of statement of Shri Prashant Abbot and Shri Ajit Yadav whereas the appellants has produced the evidence in the form of affidavit of Shri Abdul Hamid, advocate at Calcutta and also legal document signed by the appellants on 2.7.99 at Calcutta in the form of lease deed and on 5.7.99 in the form of power of attorney. Therefore, to examine the veracity of statement of Shri Prashant Abbot, we have to see whether it has been corroborated by other evidence. We find that Shri Prashant Abbot in his statement has stated that he was appointed as a godown keeper by Shri Chander Shekar Juneja on 2.7.99. From the statement of Shri Ajit Yadav, it is evident that the trucks carrying the smuggled goods started coming to the godown from 5.30 AM on 2.7.99, However, Shri Chander Shekar Juneja was at Calcutta on 1.7.99 and 2.7.99, then, it was not possible for him either to meet Ajit Yadav along with Shri Prashant Abbot and Satish Sharma in the evening of 1.7.99. Secondly, if there was altercation between Shri Prashant Abbot and Shri Chander Shekar Juneja on 30.6.99 as per the Police complaint lodged with Roop Nagar Police Station, then there was no question of appointment of Shri Prashant Abbot as godown keeper by Shri Chander Shekar Juneja. We find that the department has not made any investigation regarding the veracity of the lease agreement signed on 2.7.99 at Calcutta nor they have tried to find out the truth about the complaint lodged by Shri Chander Shekar Juneja on 30.6.99 at Roop Nagar Police Station. Affidavit of Abdul Hamid stating that Shri Chander Shekar Juneja was at Calcutta on 1.7.99 and met him in his office has also not been investigated/verified by the Department. Since these evidences which have been produced by Shri Chander Shekar Juneja regarding his presence at Calcutta on 1.7.99 and 2.7.99 were not found rebutted by the Department, therefore, these have to be taken as correct. We also find that Shri Prashant Abbot, in his statement dated 8.7.99 had claimed that the note-book where he was entering receipt and disposal of the goods from the godown, certain entries were made by Shri Chander Shekar Juneja. These entries were set to the handwriting expert by the Department and handwriting expert had given the opinion that these were not hand-writing of the Shri Chander Shekar Juneja. Therefore, the possibility that on 1.7.99 the person who has met Shri Ajit Yadav for hiring godown may have been another person posing himself as Shri Chander Shekar Juneja cannot be ruled out. Shri Ajit Yadav was never confronted with Shri Chander Shekar Juneja before the adjudicating authority. Adjudicating authority had no evidence that the person Shri Chander Shekar Juneja to whom show cause notice was issued was actually the person who met Ajit Yadav for hiring the godown on 1.7.99. We find that the godown was hired in the name of Point to Point Transport Company and no investigation was made about the Transport Company. In the circumstances, it is not possible for us to hold that Shri Chander Shekar Juneja was the person who had hired the godown. We find that the mobile phone number, which was said to be belonging to Shri Chander Shekar Juneja as stated by Shri Prashant Abbot was also not investigated as neither show cause notice nor the adjudication order give any finding on the ownership of the mobile phone. Thus, there is no definite evidence that Shri Chander Shekar Juneja was the person who had hired the godown, and who was instructing Shri Prashant Abbot for receiving and disposal of the smuggled goods.
In the circumstances, we have to give benefit of doubt to Shri Chander Shekar Juneja. We accordingly, set aside the penalty imposed on Shri Chander Shekar Juneja under Section 112 of the Customs Act. We also set aside the order giving him option to redeem the confiscated goods on payment of a fine of Rs. 1.5 crores.