TMI Blog2020 (2) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements assume relevance since both of them have inter alia stated that they are working in the appellant s service agency which fact has not been denied - Now, the appellant s explanation regarding the call records coupled with the extracts of statements of persons apprehended on the early hours of the eventful day lead us to understand that considering the gravity and nature of the offence/activity alleged, the explanation offered in the form of reply is not at all sufficient to conclude as to the innocence of this appellant, as pleaded. Considering the calls on record, the appellant cannot wash off his responsibility with a total denial that he did not know Mr. Khaja at all and that there was only a wrong call for about 6 seconds, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Learned Advocate for the appellant are summarized as below : The only allegation against the appellant is that he, along with other co-noticees namely, M/s. Solai Exports Importers (Represented by its proprietor Mr. V.S. Mathiarasu), Mr. Khaja Mohideen, Mr. Shahul Hameed, Mr. K. Francis and Mr. P. Karunanithi, was involved in the act of smuggling of gold bars; The Revenue has relied on the statements of co-noticees/co-accused namely, Mr. Francis and Mr. Karunanithi and the affidavit of Mr. Mathiarasu and that the denial by Mr. R.S. Sridhar and Mr. R. Vijayakumar has not at all been considered; The other evidences like the forensic analysis of mobile phones, etc., do not lead to any wrongdoing by this appellant; The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the cold storage of the Air Cargo Complex and none of the employees of the appellant s security agency were anywhere near it; that one Mr. Karunanithi who, according to the DRI, was clandestinely removing the gold biscuits, was not at all on duty on that particular day. He relied on the following decisions : (i) D.V. Kishore v. C.C. (Seaports-Imports), Chennai [2017 (350) E.L.T. 527 (Mad.)]; (ii) DRI v. Mahendra Kumar Singhal [2016 (333) E.L.T. 250 (Del.)]; (iii) Shafeek P.K. v. C.C., Cochin [2015 (325) E.L.T. 199 (Tri. Bang.)]; (iv) Anil Gadodia v. C.C., Mundra [2016 (343) E.L.T. 983 (Tri. Ahmd.)]; (v) S.M. Agrotech v. C.C., New Delhi [2018 (361) E.L.T. 761 (Tri. Del.)] 4.1 Per contra, Learned Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling were Mr. Thameen of Singapore, Mr. Khajabhai and Mr. Shahul Hameed, who were never apprehended, who alone perhaps could have spoken about the involvement or otherwise of the appellant; that in the absence of their statements, the levy of penalty is not correct. 6. Heard both sides, perused the documents placed on record and also the decisions submitted during the course of arguments. From the documents filed/placed on record, we do not have the benefit of the statements of Mr. Francis, Mr. Karunanithi, Mr. Shahul Hameed, etc., recorded by the authorities. Further, the so-called retracted statement is also not there on record, but for the mention of coercion before the Hon ble Magistrate. 7. The seizure at the Air Cargo Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equires a lot of explanation. 9. Further, evidence in the form of statements of the co-accused namely, Mr. Francis, Mr. Karunanithi and Mr. Shahul Hameed, are not available before us and therefore, in the absence, we are unable to judge as to its contents, veracity and its incriminatory nature. All the accused including the appellant were produced before the Learned Magistrate along with remand application on 13.04.2015 before whom the accused have stated that their statements were obtained by threat and coercion. The relevant portion of the recording of the Learned Magistrate reads as under : A1 to A4 are produced before me at my residence. Grounds of arrest is revealed to the Ad. Ad. have stated that their statements are obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own employees were doing, while working for him. 11.2 Further, a close look at the call records inter se the appellant, Mr. Khaja and Mr. Mathiarasu reveals that right from the beginning of March 2015 all these persons were in touch. There has been call records of Mr. Khaja and the appellant on 04.03.2015 for about 93 seconds, again on 09.03.2015 for about 65 seconds with Mr. Khaja, also simultaneously with Mr. Mathiarasu. There have been further calls between the appellant and Mr. Khaja with a duration of 302 seconds on 11.03.2015, again on 10.03.2015 for about 4803 seconds and 32533 seconds at 11:13 a.m. and 12:59 p.m. and further calls again at 16:30 p.m. and 16:35 p.m. for 9812 seconds and 55441 seconds, for which there is no expla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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