TMI Blog1990 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Collector of Customs under the Gold (Control) Act was preferred to the Collector (Appeals) who rejected the same for non-deposit of the penalty amount and the present appeal is against the same order. 2. The Tribunal is competent to hear the appeal against the orders under both the Acts and, therefore, it is decided that instead of remanding the matter back to the Collector (Appeals) to hear the appeal on merits without insisting on pre-deposit so far as the appeal under the Gold (Control) Act is concerned, both the appeals are heard and are disposed of by this common order. 3. On 20-7-1983, a search was carried out in the business-cum-residential premises of both the appellants, who happen to be husband and wife and durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n each of the appellants under Sec. 112(b)(i) of the Customs Act and Rs. 30,000/- imposed on each of the appellants under Sec. 74 of the Gold (Control) Act. 4. Shri Christian, the learned advocate appearing for the appellants submitted that he was not challenging the recovery of the gold from the premises and was also not challenging the recovery of the fabrics from the possession of the appellant Smt. Nurjahanben. His main submission was to the effect that this was the act of only Smt. Nurjahanben and she was the sole person responsible and the involvement of Shri Mohmedbhai was absolutely unwarranted. He submitted that for imposing penalty under Sec. 112(b)(1) of the Customs Act on Shri Mohmedbhai some knowledge ought to have been attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of the contraband articles is an undisputed position. So far as the involvement of the appellant Shri Mohmedbhai is concerned, Shri Mondal submitted that he has claimed the ownership of the Indian currency, which was also recovered from the appellants premises. He drew my attention to the fact that the currency was seized from a steel trunk and the gold seized was also lying in the same steel trunk. He submitted that this indicates that Shri Mohmedbhai was fully aware of the existence of gold in his house and in that case it is not possible to believe that he was unaware of the existence of the smuggled gold. According to his submission, Sec. 112(b) also makes a person who has been responsible for harboring and possessing any contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gin. There is no challenge on the fact that the gold seized had the markings of foreign origin. Sec. 123 of the Customs Act would stand attracted for both the seized items. The plea that she purchased gold from the open market long back is not sustainable by any cogent evidence. Her say that fabrics were gifted by her brother on his recent visit to India too is not substantiated. This appellant has therefore failed to discharge the burden of proving the licit import. Under the circumstances, the order of confiscation as also the one of imposition of personal penalty appear proper and no interference is called for. 7. The question that however deserves consideration is whether the quantum of penalty of Rs. 50,000/- imposed on her is justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buted the knowledge and involvements as contemplated under Sec. 112(b) of the Customs Act. I, therefore hold that he too is liable for imposition of penalty. However, so far as quantum of penalty is concerned, considering the facts and circumstances here, the same appears excessive. Holding him liable to penalty under Sec. 112(b) of the Customs Act I however reduce the personal penalty to Rs. 5000/-. 9. So far as imposition of penalty under the Gold (Control) Act is concerned, there is no cogent evidence that appellant Shri Mohmedbhai had possessed the gold in violation of the provisions of Gold (Control) Act. The offence under the provisions of the said Act can be attributed only to Mrs. Nurjahanben, who has not preferred any appeal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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