TMI Blog2017 (8) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... side the penalty on the appellant and observed that burden of establishing appellant s involvement in offence not discharged by department beyond doubt, there being no evidence to link appellant with the contraband gold. The imported gold bars were recovered from the vehicle and, therefore, confiscation of the conveyance and imposition of redemption fine under section 115 of the Act is justified - penalties set aside. Appeal allowed - decided partly in favor of appellant. - Appeal Nos. C/75084 & 75083/17 - Order No. FO/A/76429-76430/2017 - Dated:- 31-7-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri Arijit Chakraborty, Advocate for the Appellant Shri S. Dasgupta, DC ( AR ) for the Revenue ORDER Per Shri P. K. Choudhary Briefly stated the facts of the case are that on 16.11.2015, Sherathanga Police intercepted a vehicle in bound from Rinchenghang, Tibet Autonomous Region (TAR), China to India at Nathula gate driven by Ms.Nim Lhamu Sherpa @ Nilu Sherpa. During the search of the said vehicle, the police authorities recovered 5 pcs. of yellow metal bars believed to be gold approximately 1 kg. each in weight, which were wrapped in a white khada and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gold. 4. The ld.A.R. appearing on behalf of the Revenue reiterated the findings of the adjudicating authority. It is submitted that the seized gold was found in the vehicle which was driven by the appellant No.1. Therefore, the contention of the appellant that she had no knowledge cannot be accepted. It is further submitted that the appellant No.2 is the sister of the appellant No.1. Appellant No.2 is the owner of the vehicle who had given the vehicle to the appellant No.1 for use in the smuggling of the goods and the imposition of penalty is justified. 5. I find that the appellant No.1 has been allotted trade pass for carrying on cross-border trade between India and china through Sherathang Land Customs Station as per the trade agreement between the two countries On 16.11.2015, she went to Rinchengang, TAR, China with a truck load of food items for export, which was driven by her. It is submitted that at the time of return at Nathula gate, the police officers of Sherathanga intercepted her truck and checked the vehicle and found the 5 pcs. of gold below the driver s seat. She was shocked and surprised when she was informed by the police and clearly made out that somebody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant No.1 and Shri Dasang Bhutia had taken common plea and disowned the seized gold bars. Apparently there is a distinction between the two cases in so far as in the case of Shri Dasang Bhutia, the seized gold bar was found in his trouser/pants. On the other hand, in the case of appellant No.1, nothing was found from her possession. I find that the appellant No.1 while intercepted by the Sherathang Police had immediately stated that the she had no knowledge of the recovery of the gold bars from her vehicle. The police officers had not made any further enquiry of the case. The customs officers had made thorough enquiry but there is no evidence that the appellant had any knowledge of the seized gold bars found in her vehicle. The seized vehicle is registered in the name of the appellant No.2, sister of the appellant No.1. The appellant No.2, in her statement dated 19.01.2016 stated as under:- (a) She is the elder sister of the accused Ms. Nim Lhamu Sherpa @ Nilu Sherpa. (b) She is the owner of the seized vehicle, Eicher truck bearing Registration No. [SK-01D/08/14]. (c) Her driver is Sri Tshering Sherpa Resident of Anden, Sombare, West Sikkim. (d) On 16.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962, the onus in the instant case for proving that the seized gold are not smuggled nature shall be on the appellants. The ld.Counsel for the appellants contended that the seized items are non-notified goods. In any event, there is no material on record that the appellants had any knowledge of the seized gold bars recovered from the vehicle. Section 112 of the Customs Act, 1962 provides penalty for improper importation of goods etc.. Any person 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 to acquire possession of, or is in any way concerned etc., which he knows or has reason to believe are liable to confiscation under section 111, shall be liable for penalty. In the present case, there is no evidence that the appellants had any knowledge of the seized gold bars recovered from the vehicle and therefore, imposition of penalty on the appellants is not warranted. 9. The appellants disowned the seized gold. Therefore, the submission of the ld.Counsel for the appellants on section 123 of the Customs Act has no relevancy. To my mind, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is the statement of Shri Sriram Verma which has not stood the test of cross-examination. There is no other independent evidence to link the appellant with the contraband gold. We are therefore, of the view that the department has not discharge the burden of establishing the appellant s involvement in the offence beyond doubt. Accordingly, we extend the benefit of doubt to the appellant and set aside the penalties imposed upon him. In the result, the impugned order is set aside in so far as it relates to penalty and the appeals are allowed with consequential relief, if any due, to the appellant. 10. In the case of Alex Perez G v. Commissioner of Customs(Prev.), Mumbai [1999 (105) E.L.T. 701 (Tribunal)], the Tribunal observed as under:- 4.The contention of the Advocate for the appellant that there is no direct evidence against him has to be accepted. The only evidence that is sought to connect him to the gold is the fact that it was found in an empty grease drum, appellant being in charge of the ship s stores would perhaps be the person most likely to keep the grease drum in the stores. This fact however, alone is entirely insufficient to impose the penalty. It has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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