9911796707
TMI Blog2000 (12) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... he department and after considering their submissions, we find - (A) Section 112 of the Customs Act reads as follows:- "SECTION 112 : Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111.". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 112 (b) reasons to believe, that the gold in question was liable for confiscation under Section 111 would be a prime requisite, before it could be determined as to under which particular activity as mentioned under Section 112(b) the person was required to be visited with penalty. Keeping these views of the two Sections, we proceed to determine the levy of penalty on the present applicant in both the appeals. (C) We find from the order impugned, it is admitted by both sides before us, that the liability on the present applicant viz. Shri S. Rajagopal has been brought out in the findings in para 40 and 43 of the Order-in-Original which are extracted herein below :- "41. As for the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed @ Sulaiman was correctly identified by Vittalnathan. The four carriers who have been apprehended are too from Calicut and two of them are closely related to Abdul Majeed @ Sulaiman. The other two are staying close to Abdul Majeed's house and as admitted by Shri Abdul Majeed's father, they are friends and well-wishers of Abdul Majeed. There was no reason why they should implicate K.P. Abdul Majeed @ Sulaiman unless he was actually involved in this case. So, the smokescreen raised by the defence regarding the correct identity of Abdul Majeed is devoid of any substance. It is absolutely clear from the facts and circumstances of this case that they are only trying to duck their face in the dust and close their eyes and complain about darknes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale'. We have considered this finding of the Collector and find that there is no material on record regarding a conversation on 25-4-1987 between any two telephone numbers. The conversation on record and relied upon is a trunk call conversation between a telephone number 36508 installed in the house of Vittalnathan at Coimbatore to telephone number 72042 in the residence of K.P. Abdul Majeed of Calicut on 17-3-1987. Thus, we find that for the seizure of 90 pieces of foreign marked gold at Coimbatore on 25-4-1987, there was no record of a telephonic conversation as arrived at by the Collector. Such finding of a probability of a very strong possibility of a telephonic conversation on 25-4-1987, therefore arrived at by the Collector is not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iers with the gold. This glaring contradiction in the three statements would itself lead us to disbelieve the story that Rajagopal was aware or in the knowledge of the gold to have come to S.M. Lodge, Coimbatore on or before 25-4-1987 where it was seized. The statements as recorded would only indicate that Rajagopal, might have assisted, by consenting to have sold the gold which would have been organised to be sent to him by the father son duo of Vittalnathan-Hariprasad. This, to our mind, does not call for a visit of penalty under Section 74 of the Gold Control or under Section 112 (a) & 112 (b) of the Customs Act, 1962 for the 90 pieces of gold which were seized on 25-4-1987. (E) Examining the material as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and the law laid down by the Supreme Court that a co-accused's statement which in this case are Vittalnathan and Hariprasad, we cannot find any reason to rely on their statements to implicate and cause a visit of penalty on the present appellant Rajagopal under the provisions of Customs Act, 1962. (G) A plain reading of Rajagopal's statement in itself even though it might be retracted, does not disclose any material for us to come to a conclusion that we have reasons to believe that gold in question, i.e. 90 pieces of gold bars was liable for confiscation and this would also lead us to conclude that no penalty under Section 112 of the Customs Act 1962 would be imposed on him. (H) We have the priv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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