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TMI Blog2014 (1) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. The appellant in these appeals is adjudged to be involved in two instances of smuggling of 106 nos. each of foreign marked gold biscuits weighing 12366.596 gms in each consignment through International Air Cargo Complex, Chennai. The goods were found concealed in air conditioners and music systems imported as unaccompanied baggage and declared to be personal effects of Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy. The baggage declarations dated 28-08-2001 for clearing the consignments, were filed in the name of the above said persons and the passports of the said persons were presented to decide on the eligibility for import of goods as unaccompanied baggage. After detection of concealed foreign marked gold biscuits in the items covered by baggage declarations, the customs authorities conducted investigations. The first link of the smuggling activity identified by customs officers was Sri B. Ramu who was a clerk in a CHA firm named 'M/s Swamejee Maritime Agencies' attending to clearance of the unaccompanied baggage in question. He in turn stated that one Shri J. Purushothaman had asked him to contact Shri Naina Mohammed on 23/8/2011 for clearance of certain carg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dramohan dt. 20.9.2001 in which he stated that he assisted the appellant in smuggling of gold biscuits. On 20.9.2001, vide his statement, Shri Naina Mohammed identified Shri Chandramohan. 6. On 19-09-2011, the statement of the appellant was recorded. He stated that he was doing 'Lungi' business and that the business was not doing well and based on his friends advice he started bringing foreign goods through unaccompanied baggage and selling it in Burma Bazaar. He came in contact with Mohamed Rawthar of Dubai who had planned to conceal gold biscuits in unaccompanied baggage to be sent to Chennai. The appellant was entrusted the job of clearance of the same for which he sought assistance of Chandramohan and based on the passports and other details given by Chandramohan, he passed on the information to Mohamed Rawthar for arranging consignments and that after getting the Airway Bills he would contract Shri Chandramohan for clearance of such unaccompanied baggage from customs. In respect of the goods under seizure, he stated that he did not know the details of persons who arranged passports and cleared it. He further stated that Mohamed Rowthar was contacting him only on phone and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order. From such documents, he found that the consignment in the name of Mr. Natesan Ramaraju was booked by Rona Cargo, in Sharjah under House Airway Bill No. RC 01 99537 dt. 9/10.6.2011 at Sharjah. Similarly the cargo in the name of Santha Padayachi Ramaswamy was booked vide House Air Way Bill No. 09537 issued by Rona cargo Sharja on 10/06/2001. Thus the goods in question were given to the custody of shippers on 09-06-2001 and 10-06-2001 itself whereas, according to Revenue, appellant contacted Naina Mohammed only on 23-08-2001 i.e. almost after 2 months. Therefore, the conspiracy said to have been hatched on 23-08-2001 could not have resulted in shipping of the goods on 09-06-2001 and 10-06-2001. Therefore, the counsel argues that entire case of Revenue is without any basis and the case collapses based on the documents furnished by Revenue itself and therefore he prays that penalty imposed on the appellant may be set aside. 12. Opposing the prayer, Ld. AR for Revenue submits that statements given by the persons before the customs officers are admissible evidence and he relies on the following decisions :- (i) Surjeet Singh Chhabra Vs. UOI-1997 (89) ELT 646(SC) (ii) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er baggage Declaration in respect of Santha Padayachi Ramasamy was filled up by me on 28/8/2001 and the same were handed over to J. Purushotham Raja. The UB No.36 in respect of Natesan Raja Ramu (International Passenger baggage Declaration in respect of was not filled up by me. I do not know who has done the job. From the documents, it appears that UB Nos. 35 and 36 have been filed by the Supdt of Customs on 28/8/2001. It was marked Shri G.K.R and Shri J.M on the UB Declaration by the Supdt. My relatives have come from Chengleput. I have to go to my residence immediately. I will appear before you on 17/9/2001 at 11 AM. The above statement was given by me voluntarily without any threat or coercion. 15. The Ld AR for Revenue argues that this document was cleverly planted by the concerned to discredit the theory of Revenue and to contradict the statements which they had earlier given before the officers. The veracity of this document is not verified in any manner and therefore the date put on the House Airway Bill also cannot be taken as correct. What is relevant to know is that the unaccompanied baggage which was imported in the names of two persons who had no means to import either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of evidence given by Revenue. He prays that penalty imposed may be sustained considering the fact that already 10 to 12 consignments were cleared by the appellant as per his own admission and the value of gold in each of the present consignments itself is Rs.56.27 lakhs at the time of seizure and also considering the fact that he is not willing to disclose the names of persons who were helping him in doing the business. 16. We have considered the submissions on both sides. We have gone through the records of the case and the statement of the appellant and also of the co-accused during investigation given before the customs officers which pointed out towards appellant as the person who played a major role in the smuggling activity. 17. As regards the material discrepancy based on House Airway Bills produced by B. Ramu on 14-09-2001 and supplied to the appellant as part of all the documents collected during investigation, we agree with the argument of Revenue that these documents are not prima facie genuine documents because if it is accepted it would appear that the gold worth Rs.56.27 lakhs each in the two consignments remained concealed and idle for the period of over 2 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed on the appellant on the ground that he abetted smuggling. It is argued that when no penalty is imposed on the main persons that is Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy, who smuggled the goods penalty cannot be imposed on the abettors. For this argument the following decisions are relied upon. (i) V Abdul Rehman Musaliyar Vs.CCE-2001 (133) ELt 145 (Tri-Bang); (ii) T. P. Rajmohan Vs. CC-2006 (195) ELt 39 (Tri-Chennai); (iii) Srushti Pharmaceuticals (P) Ltd Vs. CCE-2006(204) ELt 311 (Tri-Bang); (iv) CCE Vs. KSR Freight Forwarders Pvt Ltd-2011 (274) ELT (Mad). 21. What we find is that Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy were not the main persons responsible for the impugned smuggling because they had no knowledge of concealment of gold in the goods. The main persons were in fact the Shri. Mohamed Rawthar and the appellant. Shri. Mohamed Rawthar could not be traced and hence proceedings against him is kept in abeyance. The appellant who had knowledge about the said person did not provide any information to trace the said person. There is no reason for giving any benefit to the appellant for having successfully shielded that person. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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