TMI Blog1997 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-5-1986, 120 gold bullion of 10 Tolas each, totally weighing 13,992 gms. valued at Rs.18,74,928/- IMU and Rs. 29,31,324/- IMU were found with Peter David Rahtore concealed in two cream colour cloth belts, tied to his waist at Sahar Air Port Bombay, who was trying to get off Air Canada Flight No. AC-859, and thereby Foreign Exchange Regulations Act, 1973 was contravened, and it was seized under a Panchanama. He gave a statement falsely involving the appellant by saying that He had some arrangements with the appellant Bhatt, a Catering Officer of Catering Cabin of Air India, who would make arrangements of allotting him the duty on a particular Aircraft and thereafter he would escort him along with gold in the Cabin Catering Jeep, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed. The appellant accounted with sufficient proof. It was in a cover with his wife s name, and it was accepted and released. Appellant and Peter David were detained under COFEPOSA for 7 months and High Court released them. Show cause notice, dt. 25-11-86 was served on him and he has replied on 12-12-86 and 2-2-87. After hearing, the impugned order was passed imposing penalty of Rs. 25,000/- on the appellant holding that the appellant has used Air India Jeep for transporting Peter David along with contraband gold outside Air Port and had Peter David not been intercepted by the security guard of Air India, he would have escaped. Peter David and appellant have mutually implicated themselves, and they are knowingly concerned in the removal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. He cannot maintain his family. The ld. DR has argued that the page 8 of the impugned order justifies the imposing of personal penalty and answered the contention of the appellant. 3. The point for consideration is whether this is a fit case to set aside the personal penalty imposed on the appellant under the impugned order. Our finding thereon is in the negative. 4. Perused Section 112(b) and Section 123 of the Customs Act, 1962 and also FERA. Perused the impugned order and appeal memorandum and enclosed records. Also perused 1986 (25) E.L.T. 413 (Tribunal) in the case of Mohamadbhai Chotuchai Cutpiecewala and Another v. Additional Collector of Customs, Ahmedabad, wherein it is held in para 11 of the orders that in the adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case it is seen that the role of the appellant was to assist Peter David in taking the contraband gold out of the Airport beyond Customs area to be delivered to Antony, by taking him in the jeep to Air India, to which he was attached as a caterer and also by posting him on duty, as per the understanding with both of them, to facilitate lifting of the contraband gold. In the reply to the show cause notice the appellant has stated that he had to accomodate his staff as far as possible in their posting to avoid unnecessary complaint about the harassment and it was in this context, that he used to post Peter David and others according to their request, and he had no knowledge of what Peter David was doing besides his official duties . It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d office and served with the summons. He was made to answer the question put by the officer. During the recording of the statement by the officers attached to the office of Superintendent Mr. Sardar threatened with dire consequences. When his answers were in the negative to the questions put they threatened him. He was asked to sign on the reverse side of the Post Card size photograph of one Antony, alleging to be his photo, he bluntly refused to say that he knows that person, but officers compelled him to say that the photo was of same Antony, who was to receive the gold, carried by Peter David in a belt on his waist. He vehemently objected and categorically stated that he does not know any person by name Antony, nor he was concerned when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was produced before Court on 2-6-86. The application dt. 1-6-86 to the court is too vague and in general terms regarding the actual contents of his statement. In the retraction letter dt. 24-6-86 addressed to the Assistant Collector threat and compulsion are alleged. No representation appears to have been made by the appellant against the officer who forced, compelled and threatened him, and committed duress in getting the statement, to their top officers. It is also not clear whether the appellant made any representation in that regard to the Magistrate when he was produced for remand to judicial custody. In the absence of it, the retraction statement cannot be upheld. The discussion in the impugned order at page 8 is correct. 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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