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2019 (8) TMI 337

..... enalty - HELD THAT:- The original authority has examined all the material facts and the statements given by the appellants before the Custom Officer wherein they have clearly confessed their guilt. Further, the Commissioner (A) has also considered all the submissions raised by the appellants before him regarding their defence and after considering the entire evidence, the Commissioner (A) has rightly come to the conclusion that appellant No. II (Rajendra Prakash Pawar) is the key conspirator and mastermind in the illegal activity of contraband gold. He is the sole investor of money and who has sponsored in procuring the contraband gold into India through carriers supposedly arranged by Shri Abdullah in Dubai. The Commissioner (A) further observed that he devised entire plan and put in place all suitable arrangements to execute the illegal act by dubious way of concealing the impugned goods to the seats allotted to the carrier and appellant-I and III have aided and abetted the illegal activity on payment of hefty remuneration. The contention of the learned counsel for the appellant saying that the appellants were not subjected to cross-examination is not tenable in law because the a .....

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..... s disembarked and directed the said employees to retrieve the gold hidden in the seat. Shri Mohammed Anif went to seat 12A and retrieved two packets deftly concealed inside the backrest cushion of the said seat. The palm seized packets were heavy and were covered with ash coloured adhesive tape which was used to stick the packets to the metallic base of the seat backrest. Subsequently, the packets, witnesses and the two employees were brought to the customs area of the airport and the packets unwrapped, 11 pieces of yellow metal bars in each packet totaling 22 pieces with markings viz., CREDIT SUISSE 10 TOLAS 999.0 were found. 2.1 The said gold bars totally weighing 2566.050 grams of 24 carat and 999% purity is valued at ₹ 77,87,962/- as per the approved gold appraiser/valuer. Subsequently voluntary statement of all the persons involved was taken under Section 108 of the Customs Act, 1962. Shri Mohammed Anif in his statements dated 15.7.2016 and 22.11.2016 has admitted the offence by way of aiding and abetting Shri Rajendra Prakash Pawar alias Raju alias Rajubhai in the said smuggling activity with the assistance of his colleague Shri Odiyanda Ayyappa Muddaiah. He has also st .....

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..... of Dubai on whatsApp for the said activity and that he deleted all such messages once he knew about the instant seizure and the Dubai based party who used to arrange carriers stopped messaging him after the said case. He has also stated that the investment in the said activity was done by him and gold smuggled earlier were sold to various parties and that he was fully aware that smuggling of gold is an office. 2.4 Further, the DRI officers conducted search at the residences of all three persons but, could not find any incriminating documents or gold. Subsequently, the Original Authority culminated the proceedings vide Order-in-Original No.17/2007 dated 4.8.2017 by re-determining the value of the subject gold at ₹ 75,26,225/- and confiscating the said gold totally weighing 2566.050 grams and imposed penalty on all the offenders. The Original Authority imposed penalty of ₹ 22,57,868/- under Section 112(a) of the Customs Act, 1962 on the Shri Rajendra Prakash Pawar alias Raju alias Rajubhai and ₹ 11,28,934/- each under Section 112(a) of the Customs Act, 1962 on Shri Mohammed Anif and Shri Odiyanda Ayyappa Muddaiah. 2.5 Aggrieved by the Order-in-Original, the appellan .....

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..... considered as an evidence, then the person whose statements are being relied upon should be examined before the officer and also to be allowed to cross-examine it. In support of this submission, he relied upon the CESTAT Chennai Final Order No.42569/2018 dated 9.10.2018 in Taxmo Industries in Appeal No. E/399/2012. He also relied upon the following decisions: Andaman Timber Industries vs. CCE, Kolkata: 2015 (324) ELT 641 (SC). Mridul Agarwal vs. CCE: 2018 (362) ELT 847 (Tri.-All.) Gopalji Heavy Lifters vs. CCE (Import): 2017 (357) ELT 537 (Tri.-Mum.) Hi-Tech Abrasives Ltd. vs. CCE: Raipur: 2018 (362) ELT 961 (Chhatisgarh) G-Tech Industries vs. UOI: 2016 (339) ELT 209 (P & H). Hind Industries Ltd. vs. CC, New Delhi: 2018 (364) ELT 218 (Tri.-Del.) 4.1 He also submitted that in terms of Section 123 of the Customs Act, the burden to prove that whether the seized goods are smuggled or not is on the owner of the said goods or the person who is in possession of the said goods; whereas in the present case, the appellant is neither the owner nor was in possession of the impugned goods. He further submitted that the respondents has erroneously relied upon the WhatApp messages and statem .....

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..... and put in place all suitable arrangements to execute the illegal act by dubious way of concealing the impugned goods to the seats allotted to the carrier and appellant-I and III have aided and abetted the illegal activity on payment of hefty remuneration. It is pertinent to reproduce the said findings of the Commissioner (A), which is recorded in paragraphs 12, 13 and 14, which are reproduced herein below: 12. I also find that appellant-I and III are the co-conspirators in the illicit activity. They are having access to enter the aircrafts were retrieving the impugned gold left behind in the seats assigned to the carriers and later handing it over to appellant-I in the vicinity of the airport and collecting their boot for the part played by them. Appellant-I and III have clearly and blatantly misused their official capacity of having access to enter the spice jet aircrafts in aiding and abetting smuggling of gold. Once the said consignment was caught, I find that both the co-accused have pointed fingers at appellant-II as the person involved in smuggling. 13. I find that the entire illegal activity has been run on messages exchanged via WhatsApp between the accused. Appellants-I .....

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..... case and are distinguishable. Further, I find that in the case of K. P. Abdul Majeed (supra) relied upon by the learned AR, the Hon ble High Court of Kerala has held in para 14 as under: 14. Having regard to the legal implications evolved from the aforesaid factual situation, it is clear that confession statement of co-accused can be treated as evidence provided sufficient materials are available to corroborate such evidence. As far as retraction statement is concerned, it is for the person who claims that retraction has been made genuinely to prove that the statements were obtained under force, duress, coercion, etc., otherwise the materials indicate that statements were given voluntarily. When the statute permits such statements to be the basis of finding of guilt even as far as co-accused is concerned, there is no reason to depart from the said view. It is a question of appreciation of evidence. 7. In view of my discussions above, I am of the considered view that appellants have admitted their involvement in smuggling the contraband gold and therefore, they have been rightly imposed penalty under Section 112(a) of the Customs Act, 1962. I do not find any infirmity in the impugne .....

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