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TMI Blog2023 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ,44,804/- on gold valued at Rs 60,90,400/- under section 28 of the Customs Act, 1962 and order its recovery from Noticee 4, Sh. Rishab Saini alongwith interest under section 28AA of the Act. (4) I order absolute confiscation of the Indian currency of Rs 2.20 lacs detained from the premises of the Noticee 2, Sh. Pardeep Saini, on 23.03.2019 under Section 121 of the Customs Act, 1962. (5) 1 Impose a penalty of Rs. 50,000/- (Rs. Fifty Thousand only) on Sh. Sahib Singh, Noticee 1, under Section 112 of the Customs Act, 1962; (6) I impose a penalty of Rs. 15,00,000/- (Rs. Fifteen Lakhs only) on Sh. Pardeep Saini, Noticee 2, under Section 112 of the Customs Act, 1962; (7) I impose a penalty of Rs. 1,00,000/- (Rs. One Lakh only) on Sh. Narayan Sharma, Noticee 3 under Section 112 of the Act read with section 114 of the Act. (8) I impose a penalty of Rs.5,00,000/- (Rs Five Lakhs only) on Sh. Rishab Saini, Noticee 4, under Section 112 of the Customs Act, 1962. (9) I impose a penalty of Rs.15,00,000/-(Rs Fifteen Lakhs only) on Sh. Rakesh Rai, Noticee 5, under Section 112 of the Customs Act, 1962. (10) I impose a penalty of Rs.5,00,000/- (Rs Five Lakhs only) on Sh. Vaibhav Rai, No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable belief that the same are liable to confiscation under Section 111, 115 & 118 of the Customs Act, 1962. * As per the Department, the said bus was being driven by Shri Sahib Singh driver of the bus who is not the appellant before me and his statement was recorded under Section 108 of the Customs Act, 1962 on 22.03.2019 by Superintendent of Customs, Amritsar wherein he has admitted 1 Kilo Gram Gold was handed over to him by a passenger who came on board Indigo Flight 6E048 from Dubai; but the name is not known to him because on the earlier occasion also, the same person also handed over Gold to him on 04.03.2019. He also said on three previous occasions, Gold was handed over to Sh. Pardeep Saini by him. He further clarified that on previous two occasions, the Gold was brought by Shri Rishab Saini, son of Shri Pardeep Saini. Though the Rishab Saini has not filed appeal before the Tribunal but Sh. Pardeep Saini and his wife Smt. Sreet Saini have filed appeals before the Tribunal. He has also admitted the modus-operandi of whole smuggling of Gold and also admitted that he get Rs. 10,000/- for each transaction of gold. * Similarly, the statements of other appellants were reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 should not be absolutely confiscated under Section 115(2) of the Customs Act, 1962. (ii) Penalty should not be imposed upon her under Section 117 of the Act;" * Out of these five (5) appellants, Shri Rishab Saini did not choose to file the reply to the show cause notice which was issued to him whereas other appellants denied the allegations against them by stating that they have been falsely implicated in the present case and they have no role in the said smuggling of gold. 3. Heard both the parties and perused the records. 4. Ld. Counsel Shri Naveen Bindal appearing for the appellant Shri Narayan Sharma submitted that the demand of duty and penalty on the appellant Shri Narayan Sharma is only based upon his statement given under Section 108 of the Customs Act, 1962 but the said statement has not been read as a whole and relied upon in toto but read in piecemeal. He further submits that the appellant is hardly studied upto 10th class and also does not know English language whereas the customs officer has got his statement typed and the signature was obtained without explaining the same to him. He further submits that the demand of customs duty has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the statement of Shri Narayan Sharma is excluded then nothing remains against him and therefore, the cross examination of the said witness was essential before any penalty is imposed on him. He further submits that the allegations that he gave foreign currency USD 33,000 to Shri Narayan Sharma is not proved by any cogent evidence and cannot be believed. 5.1 Ld. Counsel cited some decisions wherein it has been held that the statement against assessee cannot be used without giving them opportunity of cross examination. 5.2 Ld. Counsel submitted on behalf of Shri Pardeep Saini that no recovery was affected from him and he has been falsely implicated only on the statement made by Shri Naryana Sharma under Section 108 of the Customs Act, 1962. He further submits that penalty could not be imposed on him because he had no mens rea. He also submits that no cross examination of Shri Narayan Sharma was granted to him and therefore his statement cannot be relied upon to impose penalty and further the penalty imposed on him is on higher side which is not justified. 5.3 Similarly, the ld. Counsel has submitted on behalf of Shri Vaibhav Rai that he has been falsely implicated and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th duty was issued to Shri Narayan Sharma. Therefore, I hold that the demand of duty of Rs. 11,80,872/- alongwith interest under Section 28AA of the Customs Act is not sustainable in law and therefore, I set-aside the same but keeping in view his role in the entire smuggling activity, penalty of Rs. 1,00,000/- which has been imposed by the Ld. Commissioner of Customs under Section 112 of the Customs Act readwith Section 114 of the Customs Act is upheld. 7.2 Further, in the case of Appellant Shri Pardeep Saini, I find that he was serving as Assistant Manager (Fire Service) Airport Authority of India. No recovery has been directly affected from his possession but he is one of the man accused involving in the smuggling of the gold seized on 22.03.2019. 7.3 Further, I find that Shri Sahib Singh who was driver of the Bus has categorically stated in his statement that gold weighing 1Kg each was delivered to him on three previous occasions also and the same was handed over to Shri Pardeep Saini who has also admitted in his statement, he received Rs. 25,000/- for each transaction of gold. 7.4 Further, I find that the Ld. Commissioner, Customs has relied upon the judgement of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-decided identification signal and handed over that gold bar of one kilogram to the driver of the first bus of IndiGo Airlines that came to ferry passengers. Thereafter he stated that he left for Delhi. I find that Sh Rakesh Rai (Noticee 5), in his statement dt. 27.08.19 & 28.08.19 has either denied what was imputed to him by other Noticees or given evasive and doubtful replies. It is clear that he joined the investigations being done by the Customs Staff as per orders passed by the Hon'ble High Court at Chandigarh. On going through the above statements tendered by Noticee 1, 2, 3, and 5 under section 108 of the Act, it is clear that they knew each other and that a complex maze of network was built to act together. I find that Noticee 1, 2,3 and 5 in their statements made before the Customs Officer under Section 108 of the Customs Act have clearly confessed about their guilt of indulging in smuggling activity. I find that the Noticees have never alleged that those statements were obtained under duress or coercion and also that they have never retracted from those statements at any point of time thereafter. I have gone through the statements of the Noticees wherein they ..... 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