Full Judgment
2. We have heard Shri Sanjay Manchanda, learned counsel for the appellant and Shri D.S. Malik, learned DR for the Revenue.
3. We find from the perusal of the impugned order that the case against the appellant is based upon the statement of Shri N.C. Jain who has stated in his statement recorded on 9-9-1983 that the gold biscuits belonged to him; that one Sardarji whose name he did not know was the main recipient of the foreign currency from him in exchange for Indian currency and that he often used to collect US $ from him. In his subsequent statement of 11-9-1993 he has stated that he has identified the Sardarji from the photograph shown to him by the DRI Officers and has also furnished the address of the Sardarji i.e. B-44, Krishna Nagar. The appellant herein has not incriminated himself in any statement. The learned Counsel is correct in pointing out that the appellant's involvement in smuggling cannot be upheld merely on the basis of a statement of co-noticee in the absence of any other evidence. The adjudicating authority has also relied upon the non-appearance of the appellant herein and response to DRI summons as a factor to establish the guilt of the appellant herein. However, in addition to this finding not being an allegation in the show cause notice, we are of the view that non-appearance in response to summons cannot be a factor or criterion in determining the guilty conduct on the part of the appellant. It is a well settled legal position that statement of a co-noticee or co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activities. In this case the department has also not discharged the burden of proof cast upon it in terms of Section 121 of the Customs Act regarding seized Indian currency which the appellant has explained was his own money and not the sale proceeds of smuggled gold. Since the ingredients of Section 121 have not been brought home by the department and since the entire case is based only upon the case of Shri N.C. Jain who is the co-noticee, we hold that the department has not discharged the burden of proof and accordingly set aside the impugned order with a direction to release the Indian currency of Rs. 87,000/- and the Minolta Camera to the appellant herein. The penalty imposed on the appellant is also set aside.
4. The appeals are allowed in the above terms. Consequential relief, if any, is granted to the appellant.