TMI Blog1985 (9) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents Mittalal and Parasmal, Rs. 5,000/- on respondent Ramdoss Alias Kannan and Rs. 1,000/- on Ganesa Thevar under Sec. 112 of the Act, against which the respondents herein preferred an appeal before the Central Board of Excise and Customs which reversed the same as against which the Government of India initiated suo moto proceedings in Revision by issue of a show cause notice which, as stated above, has come up before us for disposal as an appeal. 2. On 12-11-1979, the Superintendent of Central Excise, Customs Preventive, Madurai, located three packages suspected to contain contraband goods at Madurai Radha Transport at No. 55, North Avani Moola Street, and enquiry revealed that a total number of five packages were received by the said Transport Company from the shop of M/s. Sha Nainmal Jutajee Jain belonging to respondents Parasmal and Mittalal on the night of 11.11.79 and out of the five packages two packages were subsequently removed by them on 12-11-79. The authorities thereafter contacted Parasmal and Mittalal and ascertained on enquiry from them that the two packages removed were kept in the shop of M/s. Sayee Lakshmi Stores, at No. 77, East Avani Moola Street. It is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the question as to whether the invoice is relatable to the goods under seizure. The impugned order of the Board was assailed as cryptic without considering the various pieces of evidence and circumstances against the respondents. The learned S.D.R. further urged that the Board has not considered and appreciated the incriminating statements of respondents Mittalal, Parasmal, Ramdoss and others, and the Board s finding exonerating respondent Ramdoss on grounds of benefit of doubt was also assailed as incorrect and unsupported by reasoning or discussion of the evidence. 4. The learned Counsel for respondents Parasmal and Mittalal submitted that 37800 zip fasteners were purchased by them on 9-11-1979 from M/s. Shankerjee Moolchand of Madras under invoice No. 851, dated 9-11-1979 and as Naresh Trading Company of Hyderabad desired to purchase 37,600 pieces of YKK zip fasteners of 8" and wanted the goods to be sent by lorry transport, Mittalal instructed his employees to pack the same in five cartons and sent them to lorry booking office of T.V.S. for onward dispatch to Hyderabad and as two bundles were returned by that transport company on the ground that they were improperly packed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 after a lapse of about 36 days of seizure. If really the zip fasteners under seizure had been purchased on credit basis as contended by them and covered by a credit invoice, it does not stand to reason as to why such a very important and vital piece of evidence which would vindicate the innocence of respondents Mittalal and Parasmal did not see the light of day for such an inordinately long interval of 36 days. No explanation at all has been offered by the learned Counsel for respondents in this regard except that there was a threat of Parasmal and Mittalal being hauled up under the provisions of COFEPOSA. This explanation coming as it does for the first time before us is also totally unfounded on facts because nowhere in the record has it ever been stated by any of them that they thought it prudent to withhold the production of a vital document in their favour which undoubtedly would exonerate them of a charge of being concerned in the act of smuggling merely on the basis of a threat of their being hauled up under COFEPOSA held out to them by the authorities. This aspect of the matter, as has been very rightly contended by the learned SDR, has not been adverted to at all, much l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at variance with each other and we are at a loss to understand as to why there is such a vital discrepancy in this regard. If the two packages which were sent for onward booking to Hyderabad to the lorry office were returned on grounds of defective packing, it does not stand to reason as to why the rickshawman should take them to an entirely different place viz. Sayee Lakshmi Stores, merely on seeing a group of Excise officials in the shop of Parasmal and Mittalal. The only inference that could be deduced from this is that the rickshawman himself knew about the contraband nature of the article he was carrying and that is why the presence of the Excise authorities had deterred him from bringing the packages over to the shop of Mittalal and Parasmal and more so, impelled him to screen them in a different place viz. Sayee Lakshmi Stores. Even in Sayee Lakshmi Stores, the two bundles, as evidenced by the mahazar dated 12.11.79 were kept in the back in the midst of mosaic articles. The goods were sent to Naresh Trading Company on the basis of an order of that company s representative, whose name is not known to him, and without receipt of any money. Both Parasmal and Mittalal had give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and uphold the order of the Additional Collector of Central Excise and Customs, Madurai as regards confiscation of the goods under seizure. However, bearing in mind that the goods under seizure were not notified items under the Act and in keeping in view the licensing policy of the Government in relation to the same at the relevant time, we feel interests of justice would be met if the respondents are given an option to redeem the same on payment of a fine in lieu of confiscation. Accordingly we direct that of the goods under confiscation a quantity of 3,76,000 zips be permitted to be redeemed on payment of a fine of Rs. 15,000/- (Rupees fifteen thousand only) under Sec. 125 of the Act. So far as the penalty imposed on respondent Parasmal is concerned, inasmuch as he was away from Madurai at the time when the goods were received into his shop, we are inclined to give him the benefit of doubt and set aside the penalty imposed on him. Since the respondent Ganesa Thevar, the landing agent and main source of supply of the contraband goods, has been let off with a nominal penalty of Rs. 1,000/-, we feel there is justification to reduce the quantum of penalty on respondent Mittalal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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