TMI Blog2022 (5) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the other two appellants were his employees at the relevant time. Admittedly, Mr. P.K. Arora was not in Delhi on 18th July 2014 and had gone to Mumbai to attend a jewellery exhibition. This fact has not been found to be untrue. The case of Revenue against these appellants have made out on the basis of their statements recorded at the time of investigation or the statement of the co-accused. All such statements were retracted soon thereafter. Further, these statements have also not stood the test of cross-examination during the adjudication proceedings - the two Filipino nationals have not taken the name of any of these appellants to the effect that the gold was to be delivered to these persons. Nor there is any exchange of telephone call by these appellants with the visiting Filipino nationals. The only corroborative evidence in the facts of the present case, is the recovery of 10 rupee note bearing serial no. 89L944808, from the appellant-Rajeev Kumar. Further, Mr. S.B. Taha, the Filipino national had also stated that he was to deliver the gold to the person who would have come to him bearing the 10 rupee note having the said serial no. Thus the allegation of abetment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 110 of the Customs Act. 1962 on the reasonable belief that the same were smuggled into India and were liable for confiscation under the provisions of Customs Act, 1962. 3. During the search operation, 2 persons knocked at the said hotel Room No. 201 who identified themselves as Rajeev Kumar and Amrit Pal @ Shunty. On enquiry by the officers they stated that they had come to take delivery of the smuggled gold by producing a ten rupee note to the visiting Filipinos. In the course of enquiry, Mr Rajeev Kumar produced the 10 rupee note bearing No. 89LN44808. He further stated that as per the directions of his employer Mr. Pawan Kumar Arora, he went to collect the gold from Room No. 201 of hotel Delhi Pride. He also stated that he has taken delivery of gold biscuits earlier also. Accordingly punchnama was drawn and recovered gold was seized valued at Rs. 1,11,96,000/-. Mr. Rajeev Kumar, further stated that he was working in M/s Saffron Diamond and Jewellry Pvt Ltd, a company owned by Mr. Pawan Kumar Arora. Also stated that at around 10 AM on 18 July 2014, Mr. Pawan Kumar Arora had directed him on telephone to collect a 10 rupee note from Mr. Sameer and was furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to his shop, and his employee Mr. Sameer gave the same note of same serial no. to Mr. Rajeev Kumar, who then went to take the delivery of the gold and was intercepted by the officers of DRI at Hotel Delhi Pride. That the said gold bars were to be delivered to him for melting the same. That by using the this modus operandi, they have already sold about 400 500 Kgs gold bars which were of foreign origin, imported into India. 7. Mr Samir alias G.S.Mulani in his statement recorded on 18th July 2014 inter alia stated that in the evening of 17th July 2014 at about 6PM Mr. Pradeep Patil came to him and handed him a 10 rupee note bearing a mark of 26 number. At around 10AM on 18th July 2014 he handed over the said 10 rupee note to Mr. Rajeev Kumar. That he was not aware of the further use of the said note, however he was waiting to receive the delivery of gold from Mr Rajeev Kumar. Further stated that he (Sameer) had taken delivery of gold from hotel Delhi pride, 2 times earlier from some foreigners by showing/presenting Indian currency note. 8. That as the name of appellant Mr. Pawan Kumar Arora appeared in the statement of Mr. Rajeev Kumar, Mr Amrit Pal, Mr. Pradeep Patil and Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Sameer. Further stated that he has received the payment for room booking from Mr. Rashool in cash, or the person who stayed in the hotel. 12.1 In his cross-examination. Mr. Rajeev Kumar stated that his statements recorded by the DRI officers on 18th 19th July 2014 are not true and correct. The said statements were forcefully got signed from him after being physically abused and by use of abusive language by the officers. Actually, on 18th July 2014, he alongwith Mr. Amrit Pal had gone to Delhi Pride Hotel in Karol Bagh, in order to search some part-time job to supplement his income. At the hotel, the DRI officers came across and asked him whether he was a hotel staff to which he denied. Thereafter, they took him in the hotel room and there the officers got certain papers/statements signed from him forcefully. In answer to the question whether he used to make/receive calls with Mr. Pradeep Patil and Mr. Sameer of M/s Patil enterprises. He answeredyes, M/s Patil Enterprises is situated in the same building where he was working. Due to the reason, that both the companies were engaged in gold jewellery business. He was known to Mr. Sameer alias G.S. Mulani. However, calls made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that Mr. Arora was out of station. In answer to question, if he went to hotel Pride under instructions of Mr. Pawan Kumar Arora, he replied in the negative. Further stated that his statement recorded by the officers on 18th and 19th July 2014 is not voluntary and the same was recorded under force and pressure. 15. In his cross-examination Mr. Amrit Pal alias Shunty which was held on 22nd November 2016 is stated that he was working with Mr. Pawan Kumar Arora in his shop named Saffron Diamond at Karol Bagh as a driver from 2006 to 2014. In answer to question what he was doing at hotel Pride on 18th July 2014, he answered that he was accompanying Mr. Rajeev Kumar who was searching for a job. Mr. Rajeev Kumar had requested him to take him to hotel Pride as he was feeling sick. He did not enter the hotel, only Mr. Rajeev Kumar had gone inside. However, after some time, some people came out and forced him into the hotel. He further stated that he does not know Mr. Mr. S.B. Taha and Ms. A.J. Macud had seen them for the first time on 18th July 2014. He also stated that on 18th July for 2014 his employer Mr. Pawan Kumar Arora was out of station. Further stated that he had gone to hot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f gold. It was further observed that Mr. Pawan Kumar Arora is the main person who has had hatched a conspiracy in association with the other co-accused for smuggling of foreign origin gold. He further observed that Mr. Pawan Kumar Arora was the intended recipient of the 4kg gold smuggled by the Filipino nationals into India. He further observed that the other persons namely Pradeep Patil, Rajeev Kumar, Amrit Pal and Mr. Sameer have abetted with Mr. Pawan Kumar Arora and the Filipino nationals by their act of omission and commission. Accordingly vide Order-in-Original the Additional Commissioner was pleased to confiscate the seized 4kg of gold under Section 111(d) (l) (m) r/w Section 120 of the Customs Act. Penalty was imposed on all the co-noticees including these appellants under Section 112 of the customs act. 19. Being aggrieved the appellants herein preferred the appeals before the Commissioner (Appeals) 20. The appellant Mr. Pawan Kumar Arora had inter alia urged that neither he was present at hotel Pride on 18th July 2014 nor anything incriminating was found in the course of search at his premises, which was conducted by the officers on 18th 19th July 2014 and 25th Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement which was recorded during investigation and the same has been retracted at the first available opportunity before the learned C.M. Magistrate. Further the outcome of the cross-examination has not been considered. The reliance placed by the Adjudicating Authority on the retracted statements of the co-accused is erroneous, there being no corroborative evidence. These appellants were not found in possession of the gold at any point of time, further these appellants had given cogent explanation why they had gone to hotel Delhi Pride on 18th July 2014, which has not been found to be untrue. 22. Learned AR for Revenue opposing the appeals relies on the impugned order. 23. Having considered rival contentions and on perusal of the records, I find that admittedly the gold in question was recovered from two Philippines nationals namely S.B. Taha A.J. Macud, who in their respective statements have admitted the act of smuggling by them, as they have stated that they have brought this gold into India without declaring the same at the Customs check post when they arrived at New Delhi by air. This statement have never been retracted by the two Filipino nationals. Further, they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation from these appellants and others were given freely and voluntarily by them. It is an established principal of law that suspicion, howsoever strong, cannot be treated as proof in absence of corroborative evidence. 29. The only corroborative evidence in the facts of the present case, is the recovery of 10 rupee note bearing serial no. 89L944808, from the appellant-Rajeev Kumar. Further, Mr. S.B. Taha, the Filipino national had also stated that he was to deliver the gold to the person who would have come to him bearing the 10 rupee note having the said serial no. Thus the allegation of abetment stands only against Mr. Rajeev Kumar. 30. So far, Mr. Amrit Pal, is concerned, admittedly he had only accompanied Mr. Rajeev Kumar and was waiting outside the hotel. Thus, there is no complicity on his part. 30.1 In view of my findings and discussions hereinabove, I allow the appeal of Mr. Pawan Kumar Arora (50130) Mr. Amrit Pal (50116) and set aside the impugned order against them. 31. So far, Mr. Rajeev Kumar is concerned, admittedly gold was not recovered from him, however there is strong evidence that he had gone on the said day to hotel Delhi Pride to receive the g ..... 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