TMI Blog2010 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... om his statement long after, as rightly held by the Commissioner, it was only an after thought and therefore - Except the appellant and his wife, others have not filed any appeal - They have accepted the penalty levied – No merit in appeal - 22 of 2005 - - - Dated:- 19-3-2010 - K.L. Manjunath, and H.S. Kempanna, JJ. REPRESENTED BY : Shri Kiran S. Javali, Advocate, for the Appellant. Shri B. Raghavendra B. Hanjer, Advocate, for the Respondent. [Judgment per : K.L. Manjunath, J.]. - Though the matter is listed for final hearing, we have noticed that the appeal has not yet been admitted and only a notice was issued on 21-11-2005. Therefore, at the request of the counsel for the appellant, we frame the following substantial questions of law for consideration of this Court in this appeal : (i) Whether the Commissioner has committed an error in levying penalty without affording an opportunity to cross-examine Seizing Officer and the Duty Officer station? (ii) Whether levy of penalty without conducting an identification parade is fatal to the case of the revenue? (iii) Whether the order of the Tribunal in confirming the penalty is based on perver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bag of black colour were bearing the markings of "SWISS BANK CORPORATION 10 Tolas 999.0 MP ESSAYEAR". In the other black colour bag biscuits had marking "PAMP SWISSE, 10 Tolas 999.0, Pamp ESSAYEUR" and on the back of the gold biscuits there were no marking. The total value of the gold biscuits was at Rs. 1,48,75,243/-. In all 270 foreign gold biscuits seized along with four video cameras. The consignee's address was shown as Sheik Abdullah, 2nd Main, 3rd Cross, Vasanth Nagar, Bangalore, which was a fictious address. 4. It was the specific information that these gold biscuits and four video cameras and other accessories were meant to a person by name, Nasir Therma, who was staying at No. 19/6, ground floor, 5th Main, 5th Cross, S.K. Garden, Benson Town, Bangalore - 46. The Customs Preventive Officer visited the said premises and searched the same under mahazar dt. 19-6-1997. Nasir was not present in the premises, but two persons by name Yahya Shabadri and Abdul Hafeez were present. During the course of search, a sum of Rs. 53,600/- of Indian currency, cartain packing materials such as cardboard carton, cut pieces, etc. were found and they were used to carry certain goods to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a minute near the maruthi car. He further stated that Ramakrishna is also from Coorg and had requested to clear the parcels of his friend, without Customs clearances at some place between Airport gate and MSIL. bonding area and that he would receive the same. Accordingly, he delivered first parcel to Ramakrishna in January, 96 with the help of Vasanth Kumar, for which he had received a sum of Rs. 2,000/- and again the month of March 96, he had cleared a similar parcel by receiving Rs. 5,000/- and thus by gaining confidence, he had cleared about 45 parcels in the same manner in the area between the Airport gate and the MISIL with the assistance of loaders Vasantha Kumar and Desh Kumar and for each delivery he was getting Rs. 5,000/- from Ramakrishna till August 96 and from August 96 onwards, the appellant used to pay Rs. 8,500/- for each delivery and that Ramakrishna at times used to take delivery of the parcel personally and Ramakrishna used to pay him personally near the gate outside the Airport or near Chandrika Hotel on Cunningham Road. He has stated that he was not knowing the contents of the packages and that he believed that only cameras and video cameras, battery packs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on 10-6-1997 (or 19-6-1997), when he was near the aircraft at 5.30 a.m., Uthappa, Operations Manager had instructed him to push similar parcel near the IOC gate and to deliver the parcel to the person who was standing with blue coloured Maruthi car near IOC gate and he did not know the name and address of the person who took delivery and that he would identify the person if produced before him. He further states that he himself with the assistance of Desh Kumar offloaded the said parcel together with empty val bags, some spare belts and one dangerous goods package which had arrived as bulk cargo and both of them had loaded the parcels into the trolley. 7. Similarly, another Loader Desh Kumar in his voluntary statement given before the Superintendent of Customs on 19-6-1997 has stated that he was working as a Cargo Assistant in Lufthansa Cargo since 1994 and for the first time, about six months back in December 1996, Uthappa, Operation Manager of Lufthansa Cargo took him to the Lufthansa Cargo Flight and showed him one box and told him to load the same on the trolley and to take the same outside and put it in a blue colored Maruthi car which was standing outside and he t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Office on 20-6-1997, the packing material bearing the Airway Bill numbers of Lufthansa Cargo were shown to Uthappa and were identified by Uthappa as the cartons which were used on earlier occasions to illicitly import contraband/gold which were delivered to Ramakrishna in the manner similar to the one as detailed earlier. 10. On 20-6-1997, the premises of M/s. Mahaveer Refinery of Rajesh Jain at # 83, Shop # 5, 1st Floor, Parthasarathy Complex, C.T. Street, Bangalore 2 was searched which resulted in recovery of incriminating documents such as fax messages sent from his accomplices of Dubai and a plastic carry bag having markings 'Swiss Gold Jewelry Co.' the details of which were given in the mahazar along with Indian currency of Rs. 1,32,300/-, on the belief that the said Indian currency was the sale proceeds of the contraband gold seized and other incriminating documents were also seized. 11. On 20-6-1997, Uthappa has stated that an amount of Rs. 3,61,000/- seized from his house was paid by H.S. Ramakrishna to him for removing the packages containing gold and contraband goods without customs formalities and handling over the same to H.S. Ramakrishna. He further st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in contact with Yahya Shabandri while he was working in Air Cargo Complex during 1994. During 1996, Yahya suggested to have adjustment for bringing video cameras and clearing them without payment of duty. That arrangement means removal of cargo in transit from Airport Tarmac to the MSIL bonding area and he agreed for the suggestion and from that day onwards, he has removed about 20 packages and delivered them near Chandrika Hotel on Cunningham road. He was aware that Nasir resides at # 19/6, S.K. Garden, Benson Town, Bangalore and that Nasir was coming to Air Cargo Complex for clearance of T.R. Baggage and that he had delivered the package on each occasion to Yahya Shabandri or Nasir at Chandrika Hotel and Nasir used to come in bus to take delivery of the package and sometimes Yayha Shabandri was coming in his father in law's car and that both Nasir and Yahya were living in the same house and he had not opened any of the packages delivered so far and they had informed him that the packages contained only video camera and he was not aware of the contents of the package received on 19-6-1997 or on earlier occasions. He used to get Rs. 10,000/- either from Yahya Shabandri or Nair ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The appellant has not denied his contact with Uthappa. Uthappa was working as Manager in Lufthansa Cargo Division. Uthappa and the appellant are from Coorg. The witnesses namely Loaders Vasanth Kumar and Desh Kumar have clearly stated that they would identify the person who was taking the consignment in blue color maruthi car. It is also not in dispute that the car owned by the wife of the appellant in a blue maruthi car. The wife of the appellant has stated that her husband (appellant herein) was using her maruthi car but she was not aware that he was using vehicle for smuggling activities. On showing the photo of the appellant to the witnesses viz., Vasanth Kumar, Desh Kumar, Rajesh Jain and Yahya Shabandri, they have identified the appellant as the person who was taking delivery from the Bangalore International Airport. Therefore, we are of the view that there was no necessity for the Department to conduct identification parade since the appellant himself was working in the same place for more than three years and as the witnesses were acquainted with the appellant and that they have identified his photo. In the circumstances, we have to reject the contention urged by the App ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
