1. This is an appeal directed against the order-in-original bearing No.S/14-4-1208/83 Pint/(SD/INT/NTFD/749/83), dated 18-8-1984 passed by the Addl. Collector of Customs (P), Bombay, imposing a penalty of Rs. 50,0007- under Section 112 of the Customs Act on the appellant.
2. The brief facts necessary for the disposal of the appeal can be stated as below: On the basis of an information, search of the godown premises of the appellant was carried out on 28-12-1983, as a result of which 7 packages containing Video Cassettes and stereo radio cassette players valued at Rs. 1,68,000/- (m.v) were seized from the loft of the godown. The seizure was effected in the presence of one Shri Aboo Backer Shaikh, Mukadam of the godown - the paid employee of the appellant. In the adjudication proceedings initiated by the Asstt.
Collector the appellant as well as the godown keeper Aboo Backer Shaikh were imposed penalties apart from confiscating the goods of foreign origin. The present appeal by the appellant is only with regard to the imposition of penalty on him by the Addl. Collector.
3. Shri Arun Mehta, on behalf of the appellant, contended that this order, so far as the appellant is concerned, has been passed without any legally acceptable evidence. Elaborating on this point further, he contended that it has been brought out in the statement of the godown keeper as well as in the statement of the appellant that the godown keeper is having an independent key of the godown and he is looking after the godown. The appellant visits the godown hardly for a few hours. Even the initial statement of the godown mukadam does not inculpate the appellant as having knowledge of the storage of the goods in the loft of the godown. According to Shri Aboo Backer Shaikh, the goods were brought in by one Shri Rafiq who was known to him because he is to come to play cricket near the godown. The appellant was nowhere in the picture and the appellant has also denied any knowledge about Shri Rafiq in his statement. Even in the subsequent statement of Shri Aboo Backer Shaikh given on 12-1-1984, in reply to a specific query with regard to the knowledge on the part of the appellant. Shri Aboo Backer Shaikh has clearly indicated that the appellant is not aware of the storage of the goods in the godown. Even the appellant was served with summons on 3-1-1984 and in response to the summons the appellant appeared on the next day itself. Even in the statement given on 4-1-1984, no knowledge with regard to the storage of the goods confiscated, on the part of the appellant has been brought out. This statement as well as the subsequent statement of the appellant are totally exculpatory. The learned advocate took me through the various statements referred to above and challenged the Collector's findings to the effect that it is difficult to believe that the goods under seizure were stored in the premisses of the appellant without his knowledge from the evidence on record. The evidences do not show any nexus of the goods under seizure with the appellant. He also took me through the findings of the Addl. Collector to show that the conclusions arrived at are only based on surmises and conjectures and there is no legally acceptable evidence either in the form of statements of the godown keeper or in the form of admission in his own statement. He, therefore, prayed for setting aside the order.
4. Heard Shri Prabhu, the learned departmental representative on behalf of the department. He contended that though the statements of the godown keeper as well as the appellant do not bring out the involvement of the appellant, admittedly he is the owner of the godown, where he is conducting his business. His behaviour, as is evidenced from his own statement is strange in that he noticed one Mulla and another in the godown and he did not bother to enquire about Shri Aboo Backer Shaikh and did not question their presence without the godown keeper. This clearly indicates that all is not well with his conduct. He also did not bother to make any enquiries after the seizure. He did not appear before the Customs authorities excepting in response of the summons dated 3-1-1984. He also contended that the totality of the circumstantial evidences is adequate for coming to the conclusion that the appellant, being the owner of the premises, should have had knowledge about the storage of the goods. The godown keeper is admittedly a faithful servant of 22 years and such a servant is not expected to store the goods without his master's knowledge. He thus supported the order.
5. After hearing both the sides and perusing the available records including the copies of the statements cited by the learned advocate, the main question to be decided is whether the appellant had knowledge about the storage of the smuggled goods in the godown belonging to the appellant. For considering {his main issue, certain undisputed facts have to be kept in view. The undisputed facts are: The appellant is the owner of the godown. One of the keys of the godown is with the mukadam and was operated upon independently by him. This mukadam by name Shri Aboo Backer Shaikh was the person presented at the time of search of the godown. His statement was recorded on 28-12-1983, the date of seizure itself, wherein he was personally questioned about the owner. The owner's name and address were given by Shri Aboo Backer Shaikh. No other question has been put with regard to the knowledge or complicity on the part of the owner of the godown. No follow up action by way of contacting the appellant immediately or carrying out search of the residential premises appears to have been done. Even in the initial statement of Shri Aboo Backer Shaikh, no knowledge on the part of the appellant has been attributed. According to his version given immediately after the seizure, he received the packages from one Shri Rafiq, who used to play cricket near the godown and he kept the cartons in the godown expecting that he would get some monetary benefits. Even in the statement of mukadam, he denies the knowledge of the contents of the packages. He also says that this was the first time he kept the packages like this received from somebody. Even in the subsequent statement given by the mukadam on 12-1-1984, to a pointed question as to whether the appellant was aware of the fact of keeping such contraband goods in the godown, his answer was that he has not told his master regarding the storage of such goods. In the statement recorded from the appellant, it is observed that he has denied his knowledge about Rafiq, the person who is alleged to have kept the goods in the godown. He has, also denied any knowledge about the goods. The goods are found to have been seized from the loft of the godown. It is seen from the statement of the godown mukadam as well as the appellant that none of these statements inculpate the appellant with regard to the knowledge of the storage of the contraband goods in the godown. No other evidences have been brought out either in the form of statement or through any other document to establish any link of the appellant either with the goods or with the undesirable elements resorting to smuggling of the goods. In the context of the aforesaid factual position, penal liability has been fastened on the appellant viz. on the ground that he is the owner of the godown and some of his behaviour is somewhat unusual and his faithful servant would not have stored the goods without his knowledge. The findings of the adjudicating authority precede to inculpate the appellant mainly on the following facts.
The appellant was regularly visiting the said premises. The mukadam was under the appellant's employment for nearly 22 years and hence his statement exculpating the appellant in his subsequent statement is not credible because he is a faithful servant. The persons pointed out viz.
Rafiq, Mulla are nothing but creatures of Shaikh's imagination. Hence it is difficult to believe that the goods under seizure could have found their way in the premises of the appellant without his knowledge.
The appellant's explanation was that when he visited the premises on 28-12-1983 at 6.30 p.m. he found it locked and he did not bother to open the godown. Likewise, when the appellant visited the premises on 28-12-1983 the mukadam was absent and one Mulla and another were present. The appellant did not ask them what they are doing in the absence of Shri Aboobaker Shaikh. The appellant has also referred to Mulla's name in his statement as the person from whom he enquired about the whereabouts of Shri Aboobaker Shaikh. Neither the appellant nor Shri Aboobakar Shaikh made efforts to produce this Mulla to clarify their stand in the matter. It is also difficult to conceive that Aboobakar Shaikh, being a trusted and long time servant of Modi, would undertake a venture of storing goods in the premises of Modi without the knowledge of Shri Modi.
6. All these facts discussed in the findings of the adjudicating authority can only raise a presumption or a cloud of suspicion. When it is not disputed that the godown mukadam was having an independent set of keys of the godown and he was generally supervising the godown, it is quite possiblethat the godown keeper would have accepted the packages without the prior knowledge of the owner. If this possibility is to be ruled out, there should have been an admission either from the godown keeper or from the appellant or by way of independent evidences showing the linkage of the appellant with the smugglers, which could provide the circumstantial evidence for coming to the conclusion about the knowledge of the appellant. In this case, I find there are no such evidences. On the contrary, none of the statements inculpate the appellant. No immediate action seems to have been taken even by the department to bring the appellant to the scene. Even the summons was found to have been issued on 3-1-1984, which was responded to by the appellant immediately on 4-1-1984. There was no allegation that the appellant was absconding. In view of these circumstances, the appellant is definitely entitled to the benefit of doubt, especially when the storage place is not in the open space of the godown but from the loft of the godown, which cannot be seen even during daily visits by the appellant. Moreover, the godown mukadam clearly indicates that he stored the goods on his own without the knowledge of the owner and there is no evidence to contradict this. In the circumstances, I extend the benefit of doubt to the appellant and allow this appeal, discharging him from the penalty imposed.