TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 146
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.... the statements of various persons. A Show Cause Notice dated 09.05.2016 was issued proposing confiscation of the goods and imposition of penalty on the appellants amongst others. By the impugned order, the Commissioner, Customs, Central Excise & Service Tax, Siliguri, confiscated the seized 5 pcs gold absolutely. It has also confiscated the vehicle and redemption fine of Rs. 3.00 Lakhs was imposed. Penalties of Rs. 10.00 Lakhs and Rs. 5.00 Lakhs were imposed on Ms.Nim Lhamu Sherpa and Mingma Lhamu Sherpa respectively under section 112(a) and 112(b)(i) of the Customs Act, 1962. 2. Heard both sides and perused the appeal records. 3. The ld.Counsel appearing on behalf of the appellants argued the matter at length. It is submitted that the appellant No.1 (Ms.Nim Lhamu Sherpa) had stated in her statement on the spot that she had no knowledge of the alleged gold found in the said vehicle. It is submitted that there is no material on record that the appellant had any knowledge that the seized gold were kept in the vehicle. The ld.Counsel drew the attention of the Bench to the relevant portion of the adjudication order. He submits that the adjudicating authority had not given the cross-....
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....s officers recorded the statements of both the appellants on various occasions. They have also recorded the statement of Shri Roshan Gurung, Sub-Inspector, Special Branch on 30.01.2016 who has confirmed this fact. The Customs officers also recorded the statement dated 02.02.2016 of Smt.Bindhya Rai, WCT, Sikkim Police who had also confirmed the recovery of gold under the seat cover of the driver s seat. It is seen from the adjudication order that the customs officers examined all the key witnesses who were present at the time of interception of vehicles and recovery of gold. 6. The Police officer of Sherathang has also recovered one piece of gold bar from the possession of Shri Dasang Bhutia at the same time, at the same place, while he was coming from Rinchenghang, TAR, (China) in his vehicle. The said one piece gold bar was recovered from the possession of Dasang Bhutia, which was secretly kept inside his right pocket of the pant/trouser worn by him. But, in the present case, the seized gold bars were recovered from the vehicle and not from the possession of the appellant No.1. On perusal of the various statements, as recorded by the Customs officers, would show that the seized g....
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.... Rinchenghang, TAR, China as her Driver Tshering Sherpa has not trade pass to enter China. (g) She has given the said vehicle on hire to the accused Ms. Nim Lhamu Sherpa @ Nilu Sherpa on monthly basis for seven months. (h) Ms. Nim Lhamu Sherpa @ Nilu Sherpa did not ask her permission to drive the said vehicle on 16.11.2015. (i) No formal authorization letter was issued in the name of Ms. Nim Lhamu Sherpa @ Nilu Sherpa at the time of obtaining vehicle pass to enter China for trade purpose, however, she had issued NOC to apply for the vehicle pass and to drive her carrier truck bearing registration No. [SK-01D/0814]. (j) She has not business relationship with her sister, Ms. Nim Lhamu Sherpa @ Nilu Sherpa. (k) On 16.11.2015 she was in sherathang but she did not go to Rinchenghang, TAR, China. (l) She does not knoe anything about the 05 ( five) pieces of gold bars recovered from the driver s seat of her vehicle bearing registration No. [SK-01D/0814] on 16.11.2015 shiwh was driven by her sister Ms. Nim Lhamu Sherpa @ Nilu Sherpa. 7. The customs officers had recorded the statement of Shri Bibash Gurung alias @ Dipesh Gurung, driver of the appellant. Shri Bibash Gurung in h....
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....led that the penalty cannot be imposed merely on the basis of suspicion unless there is sufficient material available on record. There is no evidence on record to show that the appellants were actually in possession of the seized goods. It is noted that there were co-occupants in the seized vehicle. The Tribunal in the case of Jai Narain Verma v. Collector of Customs, New Delhi [1994 (72) E.L.T. 567 (Tribunal)], set aside the penalty on the appellant and observed that burden of establishing appellant s involvement in offence not discharged by department beyond doubt, there being no evidence to link appellant with the contraband gold. The relevant portion of the said decision is reproduced below:- "8. We find that admittedly the gold was seized from a house under construction and some labourers were working on the ground floor and the room from which the gold was recovered, has been stated to have been already open. The fact that the room from which the gold was seized was open is further borne out by the non-mention in the Panchnama of production of key and opening of the room. In these circumstances, it cannot be said that the appellant was in conscious/sole possession of the gol....