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2020 (1) TMI 71 - AT - CustomsImposition of penalty u/s 112 of CA - Smuggling - Gold bars - seizure was made by Police and subsequently handed over to Customs - allegation based on statements of the persons carrying gold were recorded by Customs in Custody - corroborative evidences found or not - HELD THAT:- It is undisputed fact that the gold bars under seizure are smuggled into India. None has claimed ownership of the gold. The persons from whom those were recovered are not in appeal even. Though initial seizure was made by Government Railway Police, and was handed over to Customs and Customs initiated the proceedings under the provisions of Customs Act, 1962. On the basis of statements recorded from the two persons from whom the foreign gold was recovered, the Department conducted search of different persons, examined them and recorded their statements. On inquiry from mobile service provider, it was found that there were conversation taking place between members of Jain family and the said carriers at the probable time of handing over the gold at the residence of Kamal Kumar Jain, though Conversation details is not available. Santosh Kumar Jain having his business in Birgunj, Nepal is also found to be using the address of Shri Santosh Kumar Jain in India. Ankur Kumar Jain and Saurav Kumar Jain are sons of Shri Santosh Kumar Jain - the premise of Shri Krishna Kumar Jain at Raxaul was searched and they were examined only after intervention of Hon’ble High Court at Patna. In consideration of the circumstances, there is no doubt that they are involved in the present deal of smuggling. However, the Department has not been able to establish/distinguish the specific role played by the family members namely Ankur Kumar Jain and Saurav Kumar Jain. Also, the Department has not been able to establish the involvement of Shri Arjun Sah in the case and the penalty imposed upon them i.e. Shri Saurav Kumar Jain alias Raja, Shri Ankur Kumar Jain alias Vicky Jain and Shri Arjun Sah is not sustainable and accordingly ordered to be set aside with consequential relief, if any. A penalty of ₹ 5,00,000/- only on Shri Krishna Kumar Jain and Shri Santosh Kumar Jain would serve the ends of justice. Appeal allowed in part.
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