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2019 (3) TMI 1240 - AT - CustomsSmuggling - Gold - Cigarettes - unaccompanied baggage imported in container - Absolute confiscation - penalty - Held that:- Although the said container may well have been brought from Colombo to Tuticorin Port at the behest of the D.R.I, nonetheless, it had been initially destined for Tuticorin Port only. Although the connection sought to be established between the second container CAXU 3151576 and the appellants is not absolutely watertight and absolute, nonetheless, enough linkage has been established between these two persons and the gold and cigarettes that have been attempted to be smuggled in the said container. There is a preponderance of probability that in this case also, that had the two appellants been footloose and free, they would very well have filed import documents for the container load, moved the container out of the port and taken it to their godown for possible removal replacement / swapping of goods and / or container. The acts and omissions on the part of Mohammed Rabeek and Rahamath Ali will attract penalty for abetting the said attempted smuggling under Section 112 of the Customs Act, 1962. However, the quantum of such penalty will have to be commensurate not only to the degree of proof that the investigation has been able to throw up against these two persons but also / to the degree of complicity and abetment of each of them. Undoubtedly, there is a needle of suspicion that had the earlier container TLXU 2021855 not been seized and Shri Mohammed Rabeek and Shri Rahamath Ali not been in judicial custody, they would have caused clearance of the second container CAXU 3151576 also, and facilitated Mr.Roselan on the smuggling gold and cigarettes etc. from Malaysia and handed over the same to persons as instructed by Roselan. But it remains only a needle of suspicion. As mentioned earlier, statements from Rabeek have been recorded after the seizure from container CAXU 3151576 which in any case have been retracted subsequently. The main linkage that now connects Mohameed Rabeek with the seizure from the second container is the exchange of e-mails between Roselan and him with regard to attempt of Roselan to call back the second container from Colombo back to Malaysia. And from a legal view point, a needle of suspicion is not watertight proof or incontervertible evidence - The requests for cross examination made by both Rabeek and Rahamath Ali were also not acceded to. These inadequacies in the investigation and adjudication proceedings only serve to dilute the degree of abetment and complicity that has been alleged in the SCN. In the circumstances, the penalty of ₹ 25 lakhs is unnecessarily high and not commensurate with all these factoids. In our view, interest of justice will be more than adequately served by modifying and reducing the penalty imposed on Shri Mohammed Rabeek under Section 112 of the Customs Act, 1962 to ₹ 5,00,000/-. Penalty imposed on Shri Rahamath Ali - Held that:- There is no allegation that any such e-mails have been exchanged between Roselan and Rahamath Ali. Rahamath Ali has also pointed out that he was not informed by Mohammed Rabeek from where the contraband goods originated, who only was in touch with Roselan or anyone else in Malaysia through e-mail or phone. He has also alluded to the letter of Roselan dt. 3.10.2016 where latter has stated that he was never in touch with Rahamath Ali and that he never spoke to him - the penalty of ₹ 25,00,000/- imposed on Shri Rahamath Ali under Section 112 ibid is undoubtedly high and that penalty of ₹ 2,50,000/- would meet the ends of justice in this case. Penalty imposed on Bin Dawood Cargo & Travels, Chennai - Held that:- Penalty is set aside since the penalty has already been imposed on its proprietor of Shri S. Rahamath Ali. Application disposed off.
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