TaxTMI 
TaxTMI 
2013 (11) TMI 1229
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....nd (3) and 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 14 of the Foreign Trade (Regulation) Rules 1993, so also read with section 111 of the Customs Act 1962 and liable to confiscation. 2. Investigation found that the quantity as well as value of the above goods illicitly imported were not disclosed to customs but were deliberately suppressed. It was also noticed that the above said passenger had no means to discharge customs duty on 27 pieces of baggage manifested as 2,200 kgs. and was attempting to take out one of the packages. That was intercepted at the exist gate of Customs arrival hall and when questioned on the commercial quantity brought by her, she denied possession of any dutiable goods or goods in commercial quantity. 3. Ascertaining that the import aforesaid was made in contravention of the provisions of the Act, statement of Ms. Olga (the passenger) was recorded u/s 108 of the Act. She stated that she had been coming to India during last three years prior to 28.08.2000 and was bringing Chinese silk to India for sale. Her pass port also revealed that she had made short trips to India and stayed in different hotels in Paharganj, New Delhi....
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.... 15,14,474/- 9,26,858/- Shakista K Kamal Bajaj, Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 27-2-00 HY 151 26159 17,78,785/- 10,88,616/- Olga K and Shakista K Mamoor Klldll, TRK Reddy VS Teotia Parveen Teotia JA Khan VK Khurana Ajay yadav Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-4-00 K2 545 20696 14,07,355/- 8,61,301/- Shalo A Mamoor Khan, Sanak Olga K, Sudhir Sharma, Yashpal, Not passenger but at airport with flight Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopa Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-4-00 HY 421 2129 1,44,752/- 88,588/- Olga K Mamoor Khan, TRK Reddy, V S Teotia, Parveen Teotia, JA Khan VK Khurana, Ajay Yadav ....
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....e traders above being aggrieved by order of adjudication came before Tribunal. Those were dismissed by Tribunal by an order dated 25.01.2011 finding no merit therein. 7.1 Being aggrieved by the order of dismissal, they went to Hon'ble High Court of Delhi in different Appeals. Hon'ble Court observing that the order of Tribunal did not specifically deal and examine the contentions and issues raised and virtually a non-speaking order was passed without meeting requirement of law. It was directed that Tribunal shall specifically examine the contentions and issues raised by the appellant and deal with the same. A speaking order was required to be passed after referring to the evidence and material relied upon by the parties. Accordingly their cases were remanded by order dated 25.04.2012 for hearing afresh. Consequently, their appeals were heard afresh and order in each case has been passed separately considering pleadings and evidence in each case. 7.2 Present order relates to the appellant Sri Gopal Dokania in Customs Appeal No C/13 of 2008. COMMON MATERIAL FACTS AND EVIDENCE 8. Apart from the aforesaid facts on record, certain material facts and evidence which are common ....
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.... further stated that Ms. Olga gave her mobile number to him to contact. He was informed by her to wait at a particular place and time in Ajmer Gate and goods were delivered to him for ultimate delivery to the shop keepers. He was ensuring the shop keepers to talk to Ms. Olga confirming reaching of the offending goods at their shop and all that he was doing was for remuneration. Goods brought by Ms. Olga were duly packed as per orders of Chandni Chowk traders for delivery to them without any bill or voucher since those were pre ordered and delivered as per orders placed before arrival of such goods. It was further stated by him that every time 7 to 12 bundles of china silk were brought by Ms. Olga and he was cautioned by her for safe delivery since those goods were neither supported by any evidence of proper import nor duty paid . He knew the trader to whom Ms. Olga was supplying the illicitly imported China Silk and admitted the fact of knowing Mamoor Khan. Testimony of Abdul Qahar showed that he was one of the conduits and delivering the contraband silk textiles brought by Ms. Olga K and her group to the appellant traders, which made them aware of the illegal imports made by Ms. O....
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....n importer from rejected lot. In his statement dated 01.06.2001 he stated that he knew Mamoor Khan as well as Dil Agha but denied dealing with Dil Agha. (H) Sri Gopal Prasad Dokania a trader in his statement dated 5th Jan., 2001 admitted that he knew Mamoor Khan nad Dil Agha and their deal in Cina Silk and that person purchased silk fabrics from him. He confirmed that consideration of such deal was at times settled in exchange of China Silk thans. He admitted that he bought silk than from Mamoor Khan and Dil Agha in one or two occasions and those were of foreign origin. (I) Sri Nitish Kedia in his statement recorded on 15th Jan 2001 admitted the fact of knowing Mamoor Khan and his deal in China silk but he denied that he had purchased silk fabrics from Mamoor Khan. A diary seized from him disclosed contact detail of Abdul Qahar (Ref: Para 16 at Page 4-5 of SCN). (J) Sri Anup Singh in his statement dated 1st June, 2001 admitted the fact of knowing Mamoor Khan and Dil Agha but stated that he did not deal with him. So also he denied to disclose the identity of two mobile numbers contacted by him (Ref: Para 57 of SCN at Page 28-29 of SCN). (K) Sri Mahender Jain in his state....
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....the trader appellants on the other. Such circumstantial evidence existed showing knowledge of the illicitly imported smuggled good by the trader appellants. SUBMISSIONS OF APPELLANT 9.1 It was argued by Sri Bharadwaj, learned counsel on behalf of Sri Gopal Dokania, the trader appellant that a statement recorded from the appellant on 5.1.2001 (Ref: Pages 526 -522 of appeal folder) did not exhibit self-incriminating admission on the part of the Appellant on the facts of imports and/or sale and purchase of Chinese Silk Fabric and that the Appellant had no role whatsoever in the alleged transactions (Ref: Para 50 at page 43 of the appeal folder). The appellant never had involved knowingly in purchasing, selling or otherwise dealing with Chinese silk textiles as mentioned in the SCN. But the department simply relied on statements of following persons to implicate the appellant without any cogent evidence: i) Statement of Sh. Dil Agha dated 11-07-2001 ii) Statement of Sh. Dil Agha dated 16-07-2001 u/s 164 Cr.P.C. iii) Statement of Walliullah dated 19-05-01, u/s 164 Cr. P.C. before M.M. iv) Statement of Abdul Qahar dated 30-11-2000. 9.2 It was further submitted by ld.....
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...., it is not a crime. There were many more persons who were named by the same persons who named the appellant, but they were not named in the SCN notice, for the reasons best known to the authorities. 9.7 There was no direct evidence at all against the appellant. Appellant refutes entire case against him as that is based on assumptions, presumptions, suspicion and circumstantial evidence, conjectures and surmises without any legal footing. Therefore, the proceedings be dropped against the appellant, in the interest of justice. 9.8. Bare glance to the statement of the witnesses recorded under Section 108 Customs Act, 1962 and the entire material brought on record would show that the appellant had no knowledge that the textile allegedly brought into India was either smuggled or brought without payment of requisite Customs duty etc. or in contravention of any prohibition or restriction. Not only that, it is interesting to note that while recoding the statement of the appellant, he was not asked even a single question as to whether or not he knew that the textile allegedly brought by Mrs. Olga etc. was either smuggled into India or was brought into India in contravention of any ot....
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....troduced by the appellant trader to Ms. Olga. Accordingly, the goods smuggled by Ms. Olga's were delivered to all the appellant traders who were placing orders with Mamoor Khan. Wherever Ms. Olga was directing to deliver goods, Abdul Qahar was doing so. All these transactions were nowhere accounted for by trader appellant since Ms. Olga was cautioning Abdul Qahar to be careful with the goods for delivery to appellant since those goods were smuggled and had not suffered Customs Duty. All these aspects come from para 12 of the adjudication order. 10.3 Statement of Wali Ullha extracted in para 156 of the Order-in-Original exhibits that after the Chinese Silk were brought to Samir Guest House from Airport, Mamoor Khan used to contract the appellant who come and pack up the goods and Walli Ullha used to deliver the goods at their shop under instruction of Mamoor Khan. 10.4 It was further submitted by Revenue that Mamoor Khan was collecting sale proceed from the shop-keepers. It was an established fact that Abdul Quyam who was Manager of Samir Guest House stated in the statement recorded from him that the goods brought by the party of Ms. Olga were sold to nearby traders (reference....
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.... Khan for acquiring the smuggled textiles and disposal of the same. Mamoor Khan used to collect the payments (Ref. page 106 of show cause notice) from the trader appellants which remained un-rebutted leading evidence to the contrary. 12.2 Dil Agha in his statement on 23.05.2001 (Ref. page 107-110 of SCN) recorded u/s 108 of Customs Act, 1962 stated that Mamoor Khan used to deal with white coloured china silk brought from abroad which were transported to the guest house for delivery to nearby traders (Ref. page 110 of show cause notice). In his statement dated 11.07.2001 (Ref. page 110 of show cause notice), he stated that Mamoor Khan introduced him to various shop-keepers of Chandni Chowk to whom imported textiles were to be delivered. Mamoor Khan used to supply the goods to the shopkeepers who were: Arun & Gopal, Bunty, Sanjeev Jain & Mahinder Jain, Jasbir Textiles and Khem Singh. Dil Agha demonstrated familiarity of Mamoor Khan with the trader appellant and their deal in smuggled goods came to light. Investigation at page 120 of the show cause notice brought out that Abdul Qahar in his statement connected the smuggled goods brought by Ms. Olga and her party with the smuggler a....
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....Officer and not under threat or coercion was cogent and credible. 12.5 Revenue led cogent evidence against the deals of the appellant which remained un-rebutted except technical pleas raised on flimsy grounds. Evidence gathered by Revenue were not more piece of papers but well founded and stand to reason. Even statement recorded from Dil Agha who was produced before Metropolitan Magistrate on 16.07.2001 self-speak appellant's active role in abetment of disposal of the smuggled goods knowing character thereof. He could not go out of the mess of smuggling racket having frequent telephonic contacts with them before and after arrival of smuggled goods into India. His proximity to the offence was so nearer he could not remain far from the deal. He failed to state the reason why such contacts were made by him and why racketeer contacted him by phone. 12.6 It would be appreciated that no would prefer to make unwanted calls by his mobile to a stranger unless he knows the person to whom he called frequently shall fulfill his object. There was nothing presumption nor suspicion against the appellant by learned Adjudicating Authority to deal him under law. The appellant had thorough know....
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....ing 'interested' and it may also have the meaning 'involved' or 'engaged' or 'mixed up'. 12.9 Appellant's interest in the smuggled goods could not be ruled out when credible statements of Abdul Qahar, Wali and Dil Agha recorded by investigation discovered truth of the deals. Their statements remained un-rebutted unwarranting their cross examination following the ratio laid down in the case of Surjeet Singh Chhabra V. UOI - 1997 (89) ELT 646 (SC). Similarly as has been held in the case of K. T. M. S. Mohammed and Others V. UOI -1992 SCC (3) 178 that merely because a statement is retracted that cannot be said to be involuntary or unlawfully extracted. It is for the maker thereof who alleges inducement, threat and promise etc to establish that such improper means has been adapted to. 12.10 Appellant lost his right to gain from the plea of retraction of statement by Abdul Qahar when truth of ill deal was established by investigation. It has been held in the case of Naresh Sukhwani V. UOI-1996 (83) ELT 258 (SC) that the statement of a person in the status of co-accused obtained u/s 108 of the Customs Act, 1962 forms material evidence. When Department has appraised the appellant of....
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....arned Adjudicating Authority. Considering that the appellant was involved in dealing with the smuggled goods came to in India on 22 occasions as per column 'A' of Table -14, in the fitness of the circumstances of the case, levy of penalty of Rs. 10,000/- for each such occasion may not be improper. Accordingly penalty levied is reduced to Rs. 2,20,000/- instead of a compounding levy of penalty of Rs. 5,00,000/- made in adjudication. Thus appeal is partly allowed. (Pronounced in the open Court on ________) PER RAKESH KUMAR: 13. I have gone through the order prepared by my Learned Brother. Since I do not agree with his conclusion, I am recording a separate order. Though my learned brother has prepared seven separate orders in respect of the appeals filed by the Appellants namely:-Sh. Mahender Jain, Sh. Sanjeev Jain, Sh. Anudeep Singh, Sh. Gopal Dokania, Sh. Arun Dokania, Sh, Anup Singh and Sh. Nitesh Kumar Kedia, since the fact of these seven appeals are common and the evidence relied upon by the Department also more or less common, I am recording a common order, though separate findings would be given in respect of each appellant. 14. Before the coming to the issues invol....
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....There is one more person Sh. Abdul Qahar known to Mamoor Khan who is alleged to have purchased smuggled fabrics directly from MS Olga Kozireva. Since July 2000, Sh.Dil Agha was organizing illicit clearance of Chinese Silk fabrics brought by the above mentioned passengers, as Sh. Mamoor Khan had gone for Afghanistan sometime in July.2000. 14.2.3 The Third category of persons are the officers of the Customs Department posted at Delhi Air Port and Air Lines employees, who are alleged to be hand in glove with Sh. Mamoor Khan and Dil Agha and who are alleged to have facilitated the smuggling of Chinese Silk fabrics brought by the above mentioned lady passengers. 14.2.4 In the impugned order, the Commissioner has imposed penalty on the persons in the second and third category (except for Sh. Abdul Qahar) under section 112(a) of the Custom Act, 1962 as the persons who abetted the smuggling by the passengers mentioned above. Penalty on Sh. Abdul Qahar has been imposed under section 112(b) as he is alleged to have acquired smuggled fabrics from MS Olga for delivery to various dealers. 14.2.5 The fourth category of persons are the seven appellants in this case, who are the dealers, ....
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....d by the appellants were not considered by the Tribunal and as such the order passed by the Tribunal with regard to the appeals filed by these appellants is virtually a non-speaking order and does not meet the requirements of law. In this regard the observations of Hon'ble high Court in Para 8, 9 & 10 of the judgment are reproduced below:- 8. Paragraph 27 is the only paragraph which specifically deals with and refers to the allegations and records the findings of the tribunal both on facts and law. Second sentence in the said paragraph states that during the course of hearing before the tribunal, no evidence was led by the seven appellant traders to demonstrate that they were strangers to the proceedings. Learned counsel of the appellants has accepted and admitted that they were not strangers to the proceedings as they had dealt with and sold Chinese Silk. The seven appellants also admit and accept that they knew Mamoor Khan, Dil Agha, Abdul Qahar and Dilbar. However, their contention is that they did not know that the aforesaid persons were dealing with smuggled goods or....
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....he said statement also does not show his involvement. Even in the statement under section 164 of the Code of Criminal Procedure, Abdul Qahar had not implicated the said appellant. In the statement of Wali recorded under section164 Cr. P.C., there was no whisper of the nexus of the said appellant with the offense alleged. Reference was made to the first statement of Dil Agha wherein no allegation was against Mahender Jain but subsequently Dil Agha had mentioned Mahender Jains name. It was submitted that in the statement of Mahender Singh under section 108, no question was put to him whether he was involved or had dealt with Dil Agha. Our attention is also drawn to separate and different contentions raised in the case of Sumeet Kumar, Anudeep Singh, Gopal Dokania, Nitesh Kumar Kedia, Sanjeev Jain and Arun Dokania. It is pointed out that in the case of Sanjeev Jain; no statement was recorded under section 108 of the Act. 10. We have examined the contentions and issues which were raised by the appellants and have been noticed by the tribunal itself in the record of proceedings. We have also examined the written submissions which were filed by the appellants before the tribunal and ....
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....er section 111, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evade on such goods or five thousand rupees, whichever is the greater (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penal....
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....td.19.05.2001 of Sh.Waliullah recorded before the Metropolitan Magistrate wherein he stated that he was working for one Sh. Mamoor Khan, that he used to go to the Air Port with Mamoor Khan for bringing the goods brought by Uzbek lady Passengers, that the textiles brought by the passengers used to be taken to Samir Guest House, where Mamoor Khan used to stay, that Mamoor Khan to be on phone with many shop keepers -Bunty (Nitesh Kumar Kedia), Gopal, Khem Singh, Jasbir Singh and Sanjeev Jain, that these persons used to come and pack their goods and that there after Mamoor Khan used to tell him and some other labourers - Naushad, Sansar and Qayub to deliver those goods to the shops of the above mentioned persons. (c) The statements dt. 23.05.2001 and 11.07.2001 of Sh. Dil Agha where in he stated that he was working with Sh. Mamoor Khan since about a year back, that after Mamoor Khan went to his country in July 2000, he along with Sadullah and others was organizing the illicit clearance of the Chinese Silk fabric brought by Uzbek ladies, that Sh.Mamoor Khan had introduced him to various shop keepers to whom the imported textile were to be supplied, that he remembers names of some of ....
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.... with Chinese Silk fabrics show that the appellants were aware of smuggled nature of the textiles purchased by them. 19. The common plea of the appellants is that there is no recovery of imported Chinese Silk fabrics from the Appellants and the allegation against them is based only on the statements of Sh. Abdul Qahar, Sh. Walliullah and Sh. Dil Agha, that while the statement of Sh.Abdul Qahar has been retracted by him, the statements of Sh.Walliullah and Sh. Dil Agha are full of contradictions, that though the appellants had requested for cross examination of these persons, the same was not allowed, which has resulted in denial of natural justice, that the telephonic conversation of the appellants with Sh. Mamoor Khan/Sh.Dil Agha were for the purpose of selling of Indian goods to them rather than purchase of imported silk fabric as alleged in the Show Cause Notice, that there were many more persons named by Sh. Abdul Qahar, Sh.Waliullah and Sh.Dil Agha but no action has been taken against them, that neither the statements of Sh. Abdul Qahar, Sh. Waliullah and Sh. Dil Agha nor the other evidence like record of telephonic contacts, in any manner prove that the appellant had knowl....
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....er Jain. While Sh. Mahender Jain has been named only in the statement dtd. 11.07.2001 of Sh. Dil Agha, Sh. Sanjeev Jain has been named by Sh. Walliullah in his statement dtd.19.05.2001 and also by Dil Agha in his statement dtd.11.07.200. Sh. Anup Varshney, a neighbor of Sh. Mahender Jain, has also stated in his statement that he had seen Mamoor Khan coming to Mahender Jain's Shop and meeting him. Besides this, there is record of telephonic contacts between Mamoor Khan/Dil Agha and the telephones installed at the residential premises of Mahender Jain. While Sh. Mahender Jain in his statement has denied having any dealings with Mamoor Khan/Dil Agha, he has stated that these persons used to come to his shop asking for Sh.Sanjeev Jain. But no statement of Sh. Sanjeev Jain has been recorded. (2). SH. ANUDEEP SINGH:- Sh. Anudeep Singh is the proprietor of M/s. Jasbir Textiles. He has been named by Sh. Dil Agha in his statement dtd.11.07.2001, Sh. Abdul Qahar in his statement dtd. 30.11.2000 and Sh.Walliullah in his statement dtd. 19.05.2001. Besides this, Sh. Anudeep Singh in his statement has admitted to have purchased 300 to 400 Mtrs. Chinese Silk from one Khan. There is also a r....
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.... the basis of the statements of these three persons, it cannot be concluded that, the Chinese Silk fabrics smuggled by the lady passengers, mentioned above with the help of Sh. Mamoor Khan/Dil Agha and their associates were being sold only to the Appellants. Here comes the need for testing the probative value of their statements by permitting their cross examination which had been requested but was not allowed the Commissioner has not given any finding on the point as to whether the request for cross examination is acceptable and if not, why. 20.3 Apex Court in a series of judgments -Arya Abhushan Bhandar Vs.Union of India reported in 2002(143) ELT 25 (SC) and M/s. Tele Star Travels Pvt. Ltd. and others reported in 2013 TIOL (17)(SC)- FEMA has held that when the statement of a person is used against another person and the cross examination of the person who had given the statement is requested by the other person (accused), the request has to be considered. In fact in the case of M/s. Tele Star Travels Pvt. Ltd. (Supra) the Apex Court has held that it is only when a deposition passes through the fire of cross examination that a court or a Statutory Authority may be able to deter....
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....witness. Since for testing the probative value of the statement of Sh. Abdul Qahar, Sh. Dil Agha and Sh. Walliullah, it was necessary to permit their cross examinations, and the same inspite of being requested, has not been permitted, in my view, these statements cannot be used against the Appellants. Even otherwise in this case, the cross-examination of Sh. Abdul Qahar, Sh. Walliullah and Sh. Dil Agha was all the more necessary, as, from their statements, it is not clear as to when the smuggled textiles were supplied to the Appellants and if so in how much quantity. The information about quantity and value is not only necessary for determining the quantum of penalty but also for determining existence of 'reason to believe' about smuggled origin of the goods, as if there is evidence that a trader purchased a huge quantity of goods of foreign origin without ascertaining about their legal import, existence of reason to believe about smuggled origin of the goods could be presumed on the part of such trader. But in this case, there is no such Information. Therefore, the statements of Sh. Abdul Qahar, Sh. Dil Agha and Sh. Walliullah in absence of their probative value having been tes....
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.... had not only purchased the goods smuggled by the passengers, but also had knowledge about the smuggled nature of the goods. There is nothing in statements of Sh. Abdul Qahar, Sh.Walliullah and Sh. Dil Agha from which it can be inferred that the Appellants had knowledge about there smuggling activity i.e. getting the Chinese Silk fabrics brought by, Uzbek lady passengers illicitly cleared in connivance from customs in convenience with some Customs Officials and Airlines Staff. 21.1 The evidentiary Value of the record of telephonic contact between two persons 'A' and 'B' depends upon several factors like;- (i) Whether the telephonic contacts had taken place on or around the date and time when one of the two persons, say 'A', was undisputedly involved in some crime; (ii) Background of the person- 'A' and 'B', is such that in normal course there is little likelihood of their contacting each other on phone; (iii) Duration and frequency of the telephonic contacts; and (iv) Whether the calls were made from both the sides. For example if on a particular date, a person 'A' is caught smuggling a huge quantity of prohibited goods through an Airport where a Customs Officer '....
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....bability that a prudent man on its basis, would believe in the existence of fact in issue and that legal proof is not necessarily the perfect proof and often it is nothing more than a prudent man's assessment as to the probabilities of the case; (b) Initial onus of the proof on the Department can be sufficiently discharged by circumstantial evidence and once the initial burden of the proof is discharged, the onus of the proof shifts to the person concerned and if he fails to establish those facts, adverse conclusion can be drawn against him; and (c) Since smuggling is clandestine conveying of goods to avoid legal duties and secrecy and stealth are its covering guards, and since many facts, relating to this illicit business remain in special knowledge or peculiar knowledge of the persons concerned, on the principle of Section 106 of Evidence Act, the burden to establish those facts is cast on the person concerned and if he fails to establish or explain those facts, an adverse in inference of facts, may arise against him. 22.1 In this case, even if on the basis of the record of telephonic contacts between Sh. Mamoor Khan/Sh. Dil Agha and the Appellants, at the most, it is pr....
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.... gain without insisting on duty payment evidence of the goods; (b) telephonic contacts between the Appellants and Sh. Mamoor Khan/Sh. Dil Agha prove melafide intention of the Appellants having concern and interest in smuggled goods being in touch with racketeers to make ill gain; or (c) the Appellants were aware of the origin and the destination of the goods demonstrating their intimacy with the racketeers by telephonic contacts before and after arrival of smuggled goods in India. Without making the above assumptions, for which there is no basis, the sum total of the evidence on record against the Appellants (i.e. the statement of Sh. Abdul Qahar, Sh. Walliullah and Sh. Dil Agha, untested for their probative value by permitting their cross examination, and the record of telephonic contacts of Sh. Mamoor Khan/Sh.Dil Agha with the Appellants) does not establish preponderance of probability in support of the allegation against them. The sum total of evidence only creates suspicion against the Appellants but the same does not constitute preponderance of evidence which is the standard of proof required for proving the change against them. 24. In view of the above discussion ....
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....unal in respect of these seven appellants is a non-speaking order and does not meet the requirement of law. The difference of opinion is in remand proceedings between two Members. 29. Heard Shri S. Bhardwaj, ld. Advocate appearing for all seven appellants and Shri Goving Dixit, Additional Commissioner (A.R) both at length. I have also seen the submissions made before Division Bench by the appellants and Revenue which are briefly stated by ld. Member (Judicial) in para 9.1 to 9.10 and para 10.1 to 10.6 respectively. 30. The issue to be decided is whether these seven appellants are liable to penalty under Section 112(b) of the Customs Act in facts and circumstances of the case. It is the contention of the appellant s that for imposing any penalty under Section 112(b) of the Act department is required to prove that appellants had any knowledge that goods dealt/acquired/purchased/sold by the appellants were smuggled goods and were liable for confiscation. On the other hand, it is Revenues contention that appellants were deeply involved in the racket of smuggling of textiles as purchasers and cannot escape from the penal provisions of Section 112(b) of the Act. 31. For the sak....
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.... Walliullah and recorded telephone contacts between the appellants with Mamoor Khan and Dil Agha in support of contention that appellants had knowledge about smuggled nature of goods. (A) Abdul Qahar in his statement dated 30.11.2000 mainly stated that :- (i) He was introduced to Ms Olga by Bunty of Durga Creation who advised him if he does cloth business with Ms. Olga he would earn more profit. (ii) He used to receive the goods cleared by Ms. Olga and then he used to deliver the goods to shopkeepers who placed orders for the same. He used to make shopkeepers to speak to Olga on her mobile for confirming the delivery of goods to shopkeepers. (iii) Money was being collected by Olga herself. (iv) He named the Durga Creation, Jasbir Texiles, Samurai Fabrics. (B) Shri Walliullah in his statement dated 19.5.2001 has mainly stated :- (i) He was introduced to Mamoor Khan by a resident of his village and he started cooking for Mamoor Khan. (ii) When Mamoor Khan went to Airport, he accompanied him and he used to take transport vehicle to Airport. When Mamoor Khan came out of Airport with;the goods, goods were loaded into the vehicle with the help of tempo driver and ....