TMI Blog2004 (4) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscated. Through the instant appeals the appellants are contesting the basis on which the Commissioner held the appellants liable for penalty. 2. Heard both sides. 3. The facts in brief are as under :- On 30-10-1993, on specific information that two Air India employees named Mr. Solanki and Mr. Godambe attached to the Air India Cabin Catering would be removing gold from Air India aircraft arriving from Dubai at about 1900 hrs. on 30-l0-1993 in a Maruti Gypsy Vehicle No. Mh-02-J-4745. Accordingly officers of Air Intelligence Unit kept a watch on the said aircraft which arrived as Flight No. AI 710 from Dubai at 1900 hrs. and parked in remote bay No. 66. At around 2315 hrs. the said officers noticed one Jeep, Maruti Gypsy coming towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962 he had inter alia stated that he was working with Air India as handyman/sweeper; that on 30-10-1993 while he was coming on duty Mr. D.N. Vinjuda, an employee of Air India told him that one consignment of gold bars was kept in 1st Class toilet of Air India flight No. Al 710 parked at bay No. 66 and told him to remove the said gold from the aircraft and promised him to pay Rs. 4,000/ - in addition to the amount which was to be paid to Shri S.V. Godambe; that he (Solanki) took Mr. S.V. Godambe into confidence and informed him about the concealment of gold in AI 710, parked at bay No. 66 which held already arrived at about 1900 hrs. on the same day; that Shri L.R. Solanki and Shri Godambe both went to the said aircrafts pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the airport and then he hired a taxi and went to Shri D.N. Vinjuda's residence and then Shri D.N. Vinjuda gave him Rs. 50/ -, that Shri L.R. Solanki took an auto rickshaw and came to Airport and then he went to Air India canteen and thereafter while he was going to attend flight of Delta Airways, Intelligence Officers of Customs stopped him and questioned about gold and took him to Air Intelligence Unit office at Module II Sahar Airport for questioning, that on persistent questioning he admitted the removal, carriage, possession, concealment and delivery of the said gold bars of foreign origin; that he also admitted his involvement and connivance with Shri S.V. Godambe and Shri D.N. Vinjuda; that his job was to remove and carry and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst them without independent corroboration. There were certain deficiencies in the panchanama of the so-called seizure of the gold in the premises of Shri Vinjuda. This renders the fact of recovery of gold itself doubtful and hence the association of the appellants with the said smuggled gold cannot be proved so as to make them liable to penalty. 5. The defence plea of the appellants has been exhaustively dealt with by the Commissioner in his adjudication order. The appellants are disowning any connection with the gold or the fact of seizure of such gold. Notwithstanding this, it is seen that, the search of the house of Shri Vinjuda was carried out in the presence of Shri Solanki (appellant No. I). In fact, the departmental officer had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit officers. As already discussed above, the role of Shri Solanki in transporting the gold from Airport to the residence of Shri Vinjuda has been established. It is also established that the Air India vehicle Maruti Gypsy bearing registration No. MH-02-K-4745 was used for boarding the aircraft by Shri Godambe and Shri Solanki. The fact that the smuggled gold has been recovered from the residential premises of Shri Vinjuda and it was Shri Solanki who took the officers to premises of Shri Vinjuda, shows that Shri Solanki and Shri Godambe's trip in the Maruti vehicle up to the aircraft and return was obviously for the purpose of removing the gold from the aircraft and its eventual transportation to the residence of Shri Vinjuda. 7. In the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanki regarding the removal of gold and its transportation to the residence of Shri Vinjuda is corroborated by the fact that 92 gold bars wrapped in two cloth bundles were indeed recovered from the residence of Shri Vinjuda. A boarding card recovered from the residence of Shri Vinjuda confirmed that Shri Vinjuda had travelled by the said flight and admitted that he (Vinjuda) brought the gold in the said flight. No other evidence regarding the source of gold seized from Vinjuda's residence is even alleged by anyone. Therefore, notwithstanding the retractions of the statement, having precisely described the quantity of the gold and the description of the package which matched with the seizure made at the residence of Shri Vinjuda shows that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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