2025 (7) TMI 1013 - AT - Customs

Appellant held liable under ss.112(a) and 112(b) for abetting gold smuggling; penalty reduced from Rs.30L to Rs.10L

CESTAT KOLKATA - AT held the appellant liable under ss.112(a) and 112(b) of the Customs Act for abetting smuggling of gold, finding his role established ... Levy of penalty u/s 112(a) and 112(b) of the Customs Act, 1962 - smuggling of Gold through airport - entire case has been made out against him on the basis of statements of two persons - request for cross- examination of the said two persons has not been allowed - violation of principles of natural justice - HELD THAT:- It is found from the statement recorded from Shri Avijit Sarkar and Shri. Ajit Kumar Majhi, it is evident that the appellant had provided the said pair of shoes in the instant case to him, for concealing gold after receiving the same from an unknown passenger, in the toilet. Thus, it is observed that the role of the appellant in abetting the offence of smuggling of the said gold bars is clearly established. There are no merit in the submission of the appellant that he was not present in the Spice Garden on 14.01.2025 - From the findings recorded by the ld. adjudicating authority, it is clear that the evidences available on record establish the role of the appellant in the alleged offence. The appellant is liable to be penalized for the offence committed by him in the instant case. However, regarding the quantum of penalty, it is found that the penalty of Rs.30,00,000/- imposed by the ld. adjudicating authority in the impugned order is on the higher side, being not commensurate with the role played by him in the offence. Accordingly, it is found that the penalty imposed on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962 can be reduced from Rs.30,00,000/- to Rs.10,00,000/-. The appellant liable for imposition of penalty under Section 112(a) and 112(b) of the Act for his role in the offence. However, considering the role played by him, the quantum of penalty imposed is reduced to Rs.10,00,000/- - appeal disposed off. The core legal questions considered in this appeal pertain to the imposition of penalty under Sections 112(a) and 112(b) of the Customs Act, 1962, on the appellant for alleged involvement in smuggling gold through the airport. Specifically, the issues include: (i) whether the appellant was actively involved in the smuggling operation; (ii) the sufficiency and reliability of the evidence against the appellant, particularly the statements of co-accused and the absence of direct recovery of gold from the appellant; (iii) compliance with procedural safeguards under Section 138B of the Customs Act regarding recording and cross-examination of statements; (iv) the appellant's contention of denial of presence at the scene and lack of knowledge of the offence; and (v) the appropriateness of the quantum of penalty imposed.Regarding the appellant's alleged involvement, the legal framework primarily involves the provisions of the Customs Act, 1962, notably Sections 111(d) and 111(i) relating to confiscation of smuggled goods, and Sections 112(a) and 112(b) concerning penalty for abetment and attempt to commit offences under the Act. The Court examined statements recorded under Section 108 of the Customs Act from key persons intercepted with gold and involved in the operation, namely Shri Avijit Sarkar and Shri Ajit Kumar Majhi, both employees connected to the airport. These statements detailed a premeditated plan to smuggle gold bars concealed in shoes, with the appellant playing a role in arranging logistics and facilitating the operation.The Court's interpretation of the evidence highlighted that the appellant provided a pair of shoes to the person carrying the gold, arranged meetings at the Spice Garden Bar Cum Restaurant, and was in frequent contact with co-accused persons as evidenced by call records. The statements revealed that the appellant was part of the conspiracy from the planning stage, including coordinating receipt and concealment of gold delivered by passengers arriving from Bangkok. The appellant's denial of involvement was found to be contradicted by call data and witness statements, undermining his claim of innocence.On the procedural aspect, the appellant contended non-compliance with Section 138B of the Customs Act, which mandates that statements recorded during investigation must be recorded in the presence of the accused and that the accused should be given an opportunity to cross-examine the declarants. The appellant argued that the adjudicating authority did not allow cross-examination of the co-accused witnesses whose statements formed the basis of the penalty. However, the Court noted that the appellant had ample opportunity to appear and record his statement, but initially evaded summons and sought anticipatory bail, which was rejected. The appellant's eventual cooperation was after judicial directions, and his attempts to distance himself from the crime were not supported by the evidentiary record.The Court also considered the appellant's assertion that no direct recovery of gold was made from him and that he lacked knowledge of the confiscable nature of the goods. The Court applied the principle that abetment and facilitation in smuggling are punishable even if the accused is not found in physical possession of the contraband. The circumstantial evidence, including the appellant's role in providing concealment material (shoes), coordinating with co-accused, and facilitating the smuggling operation, was sufficient to establish his culpability under Sections 112(a) and 112(b).Regarding the quantum of penalty, while the Court affirmed the appellant's liability, it found the originally imposed penalty of Rs.30,00,000/- disproportionate to the appellant's role. The Court exercised discretion to reduce the penalty to Rs.10,00,000/-, balancing the seriousness of the offence with the degree of participation attributed to the appellant.The Court's significant holdings include the following key observations and legal principles:'The role of the appellant in abetting the offence of smuggling of the said gold bars is clearly established.''The entire plan for smuggling the said gold bars have been worked out much in advance, in the Spice Garden Bar Cum Restaurant.''He handed over the shoes to Avijit Sarkar for keeping and concealing the smuggled gold bars. He also procured two SIM cards... to use in their Covert operation. Thus, he not only arranged the persons but also provided them with logistic support.''All these circumstantial evidences point out that Suvadeep Dutta... was involved in said smuggling ab initio and was well aware of all the developments. Thus, his mere denial cannot absolve him of the crime committed at his initiation.''If the appellant had no role to play in the alleged offence, it is not clear as to why he sought anticipatory bail and avoided recording of statements by the Customs authorities.''The penalty imposed on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962 can be reduced from Rs.30,00,000/- to Rs.10,00,000/-.'In conclusion, the Court determined that the appellant was liable for penalty under the Customs Act for abetting the smuggling of gold, based on the totality of evidence including statements of co-accused, call records, and circumstantial proof of his involvement. Procedural objections relating to cross-examination were considered but did not vitiate the findings due to the appellant's conduct and evidence. The penalty was upheld in principle but reduced in quantum to reflect the appellant's role more fairly.