TaxTMI 
TaxTMI 
2010 (3) TMI 708
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....ased on perverse finding? 2. We have heard the learned counsel for the parties. 3. The facts leading to this case are as hereunder : The appellant was a Customs officer. He was working in Bangalore Air-Port for a period of three years and later on he was transferred to Mangalore. Based on a credible Information received by the revenue that the employees of Lufthansa Cargo International Flight are involved in smuggling of contraband gold bearing foreign markings, the revenue kept a vigil on the cargo flight on 19-6-1997. After the cargo flight of Lufthansa Cargo reached HAL Airport, Bangalore, the parcels were unloaded from cargo and were transported through a tractor-trolley to the MSIL warehouse. When the tractor-trolley reached the Indian oil Corporation Bunker gate, one of the loader's Vasanth Kumar was about to load two boxes into a Maruthi Car (blue colour) without taking those boxes to the warehouse of MSIL as required. The person who was waiting near the Maruthi Car having observed the officials of the revenue, ran away with this car, as a result of which two boxes which were about to be transported into the blue Maruthi Car, lying near the gate of Indian Oil ....
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....n goods to Bangalore by Lufthansa Cargo and those card board boxes were bearing Airway Bill Nos. of Lufthansa Cargo and all the packing materials and card board boxes found therein was of a Video Cassette player. Similarly, a search was also conducted on the premises of Lufthansa Cargo office, where C.M. Uthappa was employed as Operational Manager. A mahazar was drawn on 19-6-1997. A sum of Rs. 3,61,000/- currency was found in the premises and the same was seized on the belief that the said Airway bills were incriminating documents pertaining clandestine/illicit earlier removals of contraband previously imported and the said currency was reasonably believed to be the sale proceeds of gold. The details of the seized materials are shown in the mahazar drawn on that day. In response to the summons issued under Section 108 of the Customs Act, Uthappa appeared before the Superintendent of Customs and gave a voluntary statement on 19-6-1997 and he admitted that he was looking after the documentation of both export and import of goods and he had attended to the Lufthansa Cargo Flight No. LH-8908 which arrive at 06.20 hrs on 19-6-97. After unloading all the cargo from the main deck of Air ....
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....ery packs were in the packages as told by Ramakrishna. He further stated that Ramakrishna never told him that gold was concealed in the packages and requested for a lenient action. 5. Based on the statement of Uthappa, it was identified that H.S. Ramakrishna, the appellant who had worked in Baggage section of Air Cargo, three years back and who used to travel in blue Maruthi car and who speaks Coorgi language as the person in the blue Maruti car who sped away after pushing the package containing the contraband on to the road. Thereafter search was conducted on the residential premises of the appellant in the presence of two Mahazar witnesses. During the course of search, documents relating to the ownership of the Maruthi car bearing Registration No. KA- M-04-9081 was found which was blue Maruthi car which was used for transporting the contraband foreign marked gold biscuits and electronic goods. The vehicle was found in the premises. The documents such as pass book, check book of SBM, Driving license, personal telephone diary , RC book of the Car were seized under a Mahazar and one of the documents namely, telephone directory seized had contained the phone number of Nasir Th....
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....and he took the box from the aircraft in the trolley outside through the Export gate and kept in the blue colored Maruthi Car standing outside and that he pushed the package to the ground and got down from the trolley and put the package in the car and then went back to aircraft. Two days later, Uthappa called him and paid him Rs. 500/- and that he has delivered such parcels on two other occasions and that he did not know the name of the driver of the tractor trolley and that he would recognise the person in blue Maruthi car and that he was paid Rs. 1,500/- and Rs. 2,500/- on the second and third occasions by Uthappa. Hs suspected something wrong was happening but he continued to do so for fear of losing his job. The weight of package he had delivered to the blue Maruthi car was around 25 to 30 kgs in the first instance and on the second and third time, the weight was more than the first one and that might have weighed 35 to 40 kgs and that the contents of the said parcel was not known to him. 8. Similarly, one Yahya Shabandri in his second statement given on 20-6-1997 under S.108 of the Customs Act, 1962 has stated that he wanted to give true facts which he had not given in....
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....r states that he used to get around Rs. 40,000/- per month in this way. Further, he states that 40 Airway Bills were recovered from his house on 19-6-1997 under mahazar pertaining to the consignment removed by him without following customs procedure as mentioned in his earlier statement. 12. The appellant Ramakrishna appeared before the Assistant Commissioner, Customs on 20-6-1997 in response to a notice issued under S. 108 of the Customs Act. He has given a voluntary statement stating that he had come to know about the search of his residence on 19-6-1997 as a follow up action consequent to the seizure of foreign marked gold at the Airport. 13. According to him, on the morning of 19-6-1997, he left his house at 5.30 a.m. and went and parked the car opposite Indian Oil Corporation bunker gate near the Bangalore International Airport. He parked the car in ready to leave condition by keeping the dicky open and faced it towards the Airport Exit Road. The Lufthansa Cargo aircraft arrived late at about 6.20 a.m. and within 25 or 30 minutes a trolley tractor came out of the airport through the export side exit gate and as the trolley approached his car, it slowed down and a....
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....out of which he was paying Rs. 5,000/- to Uthappa and that he came in contact with Uthappa for the first time in a Hockey Match. 14. Similarly, the statement of Rajesh Jain and others were recorded. Vasanth Kumar, Uthappa, Desh Kumar, Rajesh Jain and Yahya Shabandri have identified the appellant Ramakrishna since they knew him. 15. After giving statement under S.108 of the Customs Act, a retractory statement was also given by the appellant from jail which has not been accepted by the Commissioner on the ground that the appellant Ramakrishna was the Customs officer and he was aware of the consequences of giving a statement under S.108 of the Customs Act and his subsequent statement of retraction was only an after thought. After considering the entire case, relying upon the statement given by the various witnesses under S.108 of the Act, the Commissioner has levied penalty of Rs. 10 lakhs on the appellant. 16. Being aggrieved by the same, the appellant filed an appeal before the CESTAT. The CESTAT, after examining the entire facts, came to the conclusion that the Commissioner was justified in levying penalty as the penalty levied by him is less than 10% of the va....