Judgment:
Per Mathew John, J.
1. The appeals were heard at length through Senior Advocate Shri. B. Kumar on 29-07-2013. After hearing both sides Bench desired to know what was the source of certain documents relied upon by the appellant and furnished to the appellant while the appellant was detained under COFEPOSA. The matter was adjourned to 10-09-2013. While the matter came up for hearing on 10-09-2013 none appeared on behalf of the appellant. So revenue was heard on the short point which remained to be clarified and thereafter the matter was reserved for orders.
2. There are two appeals filed by the same appellant being considered together because the facts leading to the two adjudication orders happened almost concomitantly and are substantially the same.
3. The appellant in these appeals is adjudged to be involved in two instances of smuggling of 106 nos. each of foreign marked gold biscuits weighing 12366.596 gms in each consignment through International Air Cargo Complex, Chennai. The goods were found concealed in air conditioners and music systems imported as unaccompanied baggage and declared to be personal effects of Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy. The baggage declarations dated 28-08-2001 for clearing the consignments, were filed in the name of the above said persons and the passports of the said persons were presented to decide on the eligibility for import of goods as unaccompanied baggage. After detection of concealed foreign marked gold biscuits in the items covered by baggage declarations, the customs authorities conducted investigations. The first link of the smuggling activity identified by customs officers was Sri B. Ramu who was a clerk in a CHA firm named M/s Swamejee Maritime Agencies attending to clearance of the unaccompanied baggage in question. He in turn stated that one Shri J. Purushothaman had asked him to contact Shri Naina Mohammed on 23/8/2011 for clearance of certain cargo booked in the name of Natesan Rajaramu and Santha Padayachi Ramaswamy. Shri Purushothaman was working as clearing clerk of M/s. D. Thimeswara Rao and Company, (CHA) and he used to clear unaccompanied baggage independently using the name of said CHA. On 27.8.2001, he received Rs.45,000/- from Naina Mohammed through one person named Mujupur, who was working for Naina Mohammed. He had received Rs.45,000/- from Naina Mohammed for clearance of baggage.
4. Shri Naina Mohammed stated that he was engaged in the business of importing consumer goods and selling it in Burma Bazar for about 10 years. He also stated that he used to arrange passports of persons, who were eligible to claim benefit of transfer of residence, from various places in Tamil Nadu. He admitted that he arranged passports of Rajaramu and Padayachi and handed over the passports to one Shri Chandramohan.
5. Thereafter, Chandramohan was summoned and his statement was recorded. It was Chandramohan who implicated the present appellant Hidayathullah @ Mannady Barakath. Chandramohan stated that Hidayathullah was earlier doing Lungi business. He stated that During Feb 01, the appellant informed him that the appellant wanted to bring gold biscuits by concealing in unaccompanied baggage and that he wanted passports with eligibility for transfer of residence concession. Shri. Naina Mohammed used to arrange passports with eligibility for transfer of residence concession and he used to give Naina Mohammed Rs.4500/- per passport from persons who collected such passports. The appellant through his connections in Dubai used to conceal gold biscuits in electronic goods and send it as unaccompanied baggage and when it reached Chennai International Cargo complex, appellant used to call him and give him Rs.25000/- to Rs.30000/- per baggage along with passport which he used to give to Naina Mohammed. On clearance of such baggage, Shri Naina Mohammed used to call him and handover the baggage near Beach Railway station. For the job he was paid Rs.10,000/- each time. It is stated by Shri Chandramohan that they had cleared 10 to 12 consignments in the past. It is stated that after recovery of gold biscuits, in the present consignments he contacted Shri. Hidayathullah (appellant) and as per the instruction of the appellant, he went to Trichy and stayed in a fictitious name in lodges. There was further statement from Chandramohan dt. 20.9.2001 in which he stated that he assisted the appellant in smuggling of gold biscuits. On 20.9.2001, vide his statement, Shri Naina Mohammed identified Shri Chandramohan.
6. On 19-09-2011, the statement of the appellant was recorded. He stated that he was doing Lungi business and that the business was not doing well and based on his friends advice he started bringing foreign goods through unaccompanied baggage and selling it in Burma Bazaar. He came in contact with Mohamed Rawthar of Dubai who had planned to conceal gold biscuits in unaccompanied baggage to be sent to Chennai. The appellant was entrusted the job of clearance of the same for which he sought assistance of Chandramohan and based on the passports and other details given by Chandramohan, he passed on the information to Mohamed Rawthar for arranging consignments and that after getting the Airway Bills he would contract Shri Chandramohan for clearance of such unaccompanied baggage from customs. In respect of the goods under seizure, he stated that he did not know the details of persons who arranged passports and cleared it. He further stated that Mohamed Rowthar was contacting him only on phone and he stated that that he has not seen Rawthar at all and he does not the telephone number of Mohamed Rawthar.
7. The appellant, Hidayathulla and S. Chandramohan were arrested and remanded to judicial custody on 20.9.2001. Later the appellant was detained for some time under COFEPOSA.
8. Statements of passengers viz. Shri Rajaramu and Shri Santha Padaiyachi Ramaswamy were recorded and they submitted that they had returned to India in June 2011 and had given their passports to Naina Mohammed for a consideration of Rs.3,000/- and they were not aware of the contents of the baggage.
9. Based on such facts unearthed, Revenue issued two show cause notices to various parties proposing confiscation of the seized gold biscuits and also proposing penalties. None of the noticees claimed ownership of the seized gold. After adjudication, the seized gold biscuits were absolutely confiscated along with air-conditioners and music systems used for concealing the said gold bars under Section 119 of the Customs Act. Further a penalty of Rs.10,00,000/- was imposed on S. Hidayathulla @ Mannady Baraath (the appellant) in each order and Rs.5,00,000/- was imposed on Chandramohan in in each case under section 112(a) of the Customs Act, 1962. No penalty was imposed on S/Sh J. Purushothaman, Rajaramu and Santha Padaiyachi Ramaswamy by the adjudicating officer. Proceedings in respect of Mohamed Rawthar has been kept in abeyance because he could not be located. Aggrieved by the orders of the Commissioner, appellant has filed these appeals.
10.Ld. Senior Advocate for the appellant submits that there is no evidence against the appellant apart from the statement of Shri Chandramohan and appellants own statement. He submits that the two statements given by Shri. Chandramohan were retracted while he was in judicial custody. He argued that retracted statements cannot be relied upon as evidence. For this argument relied upon the decision of the Apex Court in the case of Vinod Solanki Vs, UOI-2009 (233) ELT 157 (SC). The Ld Senior Advocate also argued that confessional statement gets contradicted and not corroborated by the House Airway Bills produced.
11. Further, the Senior advocate argued mainly pointing out one discrepancy in the entire theory put forth by Revenue. He submitted that while appellant was detained under COFEPOSA, he was served with documents relied upon for issuing COFEPOSA detention order. From such documents, he found that the consignment in the name of Mr. Natesan Ramaraju was booked by Rona Cargo, in Sharjah under House Airway Bill No. RC 01 99537 dt. 9/10.6.2011 at Sharjah. Similarly the cargo in the name of Santha Padayachi Ramaswamy was booked vide House Air Way Bill No. 09537 issued by Rona cargo Sharja on 10/06/2001. Thus the goods in question were given to the custody of shippers on 09-06-2001 and 10-06-2001 itself whereas, according to Revenue, appellant contacted Naina Mohammed only on 23-08-2001 i.e. almost after 2 months. Therefore, the conspiracy said to have been hatched on 23-08-2001 could not have resulted in shipping of the goods on 09-06-2001 and 10-06-2001. Therefore, the counsel argues that entire case of Revenue is without any basis and the case collapses based on the documents furnished by Revenue itself and therefore he prays that penalty imposed on the appellant may be set aside.
12. Opposing the prayer, Ld. AR for Revenue submits that statements given by the persons before the customs officers are admissible evidence and he relies on the following decisions :-
(i). Surjeet Singh Chhabra Vs. UOI-1997 (89) ELT 646(SC)
(ii). Naresh J Sukhwani Vs. UOI-1996 (83) ELT 258 (SC)
13. He further points out that appellant himself had given inculpatory statement admitting his involvement in the goods seized. Further, the investigations conducted by the Directorate General of Intelligence from stage to stage finally lead to the appellant but the appellant did not co-operate to locate Shri Mohamed Rawthar to whom he was pointing his finger. This would show that appellant was the real person behind the entire activity.
14. As regards air way bills dt. 09-06-2001 and 10-06-2001 issued by Rona Cargo and said to be given to the appellant while in detention under COFEPOSA, Ld.AR submits that this is a document introduced by Shri B. Ramu while giving his second statement on 14-09-2001 and this is not a document which has come up through any search or seizure. The said statement reads as under:
"With reference to your summons dated 13/9/2001, I am appearing before you and giving the following truthful statement under section 108 of the Customs Act, 1962. After my statement, I proceeded to my residence. When I reached my home my sister's daughter handed over certain documents to me when I asked how these documents came to my residence, she immediately told me some unknown person came in a blue colour car and handed over the documents to my sister's daughter and requested her to hand over to me. They also told that the said documents were given by Shri J. Purushotham Raja to be handed over to Ramu. My sister's daughter name is Selvi V. Thilagam. She is now at present staying with me. When I gone through the Documents, I found that the documents belongs to the consignments of Shri Natesan Raja Ramu and Shri Santha Padayachi Ramaswamy the documents contains two passports (1) Natesan Raja Ramu PP No. K552540 (2) Santha Padayachi Ramasamy PP No.Q 298357. It also contains 2 location slips 2 Delivery orders 2 Airway Bills 2 TR. Forms and 2 sets of UB declaration. As the documents are required by D.R.I officers I am handing over all the original documents and 2 passports for your ready reference and safe custody. In this connection, further I like to state that in the said documents the Transfer of residence form in respect of Mr. Natesan Raja Ramu and Santha Padayachi Ramasamy were written by me. The UB No.35, International Passenger baggage Declaration in respect of Santha Padayachi Ramasamy was filled up by me on 28/8/2001 and the same were handed over to J. Purushotham Raja. The UB No.36 in respect of Natesan Raja Ramu (International Passenger baggage Declaration in respect of was not filled up by me. I do not know who has done the job. From the documents, it appears that UB Nos. 35 and 36 have been filed by the Supdt of Customs on 28/8/2001. It was marked Shri G.K.R and Shri J.M on the UB Declaration by the Supdt. My relatives have come from Chengleput. I have to go to my residence immediately. I will appear before you on 17/9/2001 at 11 AM. The above statement was given by me voluntarily without any threat or coercion."
15. The Ld AR for Revenue argues that this document was cleverly planted by the concerned to discredit the theory of Revenue and to contradict the statements which they had earlier given before the officers. The veracity of this document is not verified in any manner and therefore the date put on the House Airway Bill also cannot be taken as correct. What is relevant to know is that the unaccompanied baggage which was imported in the names of two persons who had no means to import either the electronic goods used to conceal gold nor the gold biscuits concealed therein. Therefore, the argument that the passengers had entrusted the cargo to M/s Rona Cargo of Sharjah on 09-06-2001/10-06-2001 itself for shipping is not acceptable to simple logic. He also argues that it cannot be denied that gold was concealed in the baggage because the said gold biscuits were physically seized. In no case, anybody will keep such huge value of goods in concealed form for a long period of over two months involving risk of pilferage and also blocking of the capital for the activity. Therefore, the theory that the goods were handed over for shipping on 09-06-2011/10-06-2001 is not acceptable. He also pointed out that the goods that arrived in the name of Mr. Natsan Ramaraju was covered by master airway bill 176-1723-7146 dt. 25-08-2001 issued by Emirates Airways and these arrived on the next day i.e. on 26-08-2011. Further these master airway bills donot show that goods of more than one person were consolidated in the same Master Airway Bill. Similarly the goods in the name of Santha Padayachi Ramasamy was covered by Master airway Bill No. 176-1723-7150 dated 25-08-2001 and the goods arrived on the next day. This Master Airway Bill also does not show any consolidation or any co-correlation to the House Airway bills submitted on 14-09-2001 showing shipments during June 2001.These master airway bills were the documents showed the names of Natesan Ramaraju and Santha Padayachi Ramasamy and these were the documents based on which delivery of the goods was taken from the airlines. These Master Airway Bills are believable documents whereas House Airway Bills submitted by Shri B. Ramu are fabricated documents planted as evidence by Shri B. Ramu at the time of recording his second statement on 14-09-2001. So Ld. AR for Revenue submits that no credence should be given to the House Airway Bills submitted by Ramu and the argument canvassed by appellant that there is major discrepancy in the evidence adduced by Revenue against the appellant is baseless. He submits that the House Airway Bills were not documents adduced by Revenue but documents adduced by defence. Since all documents that had come to the possession of Revenue had to be furnished at the time of issuing the detention order under COFEPOSA these documents were also given. That by itself does not give the document a status of evidence given by Revenue. He prays that penalty imposed may be sustained considering the fact that already 10 to 12 consignments were cleared by the appellant as per his own admission and the value of gold in each of the present consignments itself is Rs.56.27 lakhs at the time of seizure and also considering the fact that he is not willing to disclose the names of persons who were helping him in doing the business.
16. We have considered the submissions on both sides. We have gone through the records of the case and the statement of the appellant and also of the co-accused during investigation given before the customs officers which pointed out towards appellant as the person who played a major role in the smuggling activity.
17. As regards the material discrepancy based on House Airway Bills produced by B. Ramu on 14-09-2001 and supplied to the appellant as part of all the documents collected during investigation, we agree with the argument of Revenue that these documents are not prima facie genuine documents because if it is accepted it would appear that the gold worth Rs.56.27 lakhs each in the two consignments remained concealed and idle for the period of over 2 months in the custody of cargo agents which will not happen in the normal course of smuggling. Further the Master Airway Bills do not show any co-relation to the documents produced though the documents produced show the number of Master Airway Bill. That is consistent with the argument that these are fraudulent documents. Therefore, we do not give any weightage to these documents.
18. We note that in the appeal Memo there is a feeble argument that the seizure from the concerned baggage itself was not proved because the mahazar witness did not confirm it in cross-examination. This argument is not seen raised in the adjudication proceedings. It was not argued during hearing before the Tribunal either.
19. Another argument that was raised was that the statements given by the co-accused namely Shri. Chandramohan on 19-09-2001 and 20-09-2001 were retracted by letter dated 27-09-2001 while he was in judicial custody and retracted statements have no evidentiary value. We note this retraction is 7 to 8 days after the original statement and also 7 days after his remand to judicial custody. Further no retraction by the Appellant from his statement dated 19-09-2001 is on record. The statement of the appellant is inculpatory and it also corroborates the statements originally given by Shri. Chandramohan. Therefore going by the decision of the Hon. Apex Court in the case of Surjeet Singh Chhabra (Supra) and Naresh J Sukhwani (supra) we do not see any reason to discard the statements dated 19-09-2001 and 20-09-2001 given by Shri Chandramohan and statement dated 19-09-2001 given by appellant himself. The decision of the Hon Apex Court in the case of Vinod Solanki was in a situation where the statement was retracted by the concerned person at the time of producing him before the Magistrate. An argument is also raised that any confession should be corroborated by other evidences like in the case of Shankaria Vs State of Rajasthan 1978 AIR 1248. This was a criminal case involving capital punishment. The confession was relied upon and punishment given. In that case there were some corroborative evidences also. In this case of smuggling there is no need to apply the same standard of proof. In this case, statement of the accused is corroborated by statement of others who were involved in the activity.
20. In the written submissions there is an argument that penalty has been imposed on the appellant on the ground that he abetted smuggling. It is argued that when no penalty is imposed on the main persons that is Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy, who smuggled the goods penalty cannot be imposed on the abettors. For this argument the following decisions are relied upon.
(i). V Abdul Rehman Musaliyar Vs.CCE-2001 (133) ELt 145 (Tri-Bang);
(ii). T. P. Rajmohan Vs. CC-2006 (195) ELt 39 (Tri-Chennai);
(iii). Srushti Pharmaceuticals (P) Ltd Vs. CCE-2006(204) ELt 311 (Tri-Bang);
(iv). CCE Vs. KSR Freight Forwarders Pvt Ltd-2011 (274) ELT (Mad).
21. What we find is that Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy were not the main persons responsible for the impugned smuggling because they had no knowledge of concealment of gold in the goods. The main persons were in fact the Shri. Mohamed Rawthar and the appellant. Shri. Mohamed Rawthar could not be traced and hence proceedings against him is kept in abeyance. The appellant who had knowledge about the said person did not provide any information to trace the said person. There is no reason for giving any benefit to the appellant for having successfully shielded that person. The case laws cited do not involve facts similar to the facts in this case where goods were concealed and smuggled and the question as to who is the main person concerned in the offence was very clear from the beginning. The present case is on different footing and We donot find any reason to apply the ratio of those cases in this case.
22. In view of the analysis of the facts and law as above we do not find any infirmity in the order of the adjudicating authority and hence the appeals are rejected.