TaxTMI 
TaxTMI 
2019 (8) TMI 337
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....6 Rs. 11,28,934/- 2. Briefly the facts of the present case are that officers of DRI, Mangalore on specific information that one passenger by name Shri Abdul Kader an Indian citizen holding passport bearing No.Z3289626 travelling from Dubai to Mumbai on 15.7.2016 by Spice jet Flight No.SG0014 had concealed contraband gold under seat No.12A and disembarked at Mumbai leaving the said gold in the aircraft itself making arrangements to retrieve the same with two employees of M/s. Spice Jet Airlines working at Mangalore International Airport on the domestic leg of the said aircraft from Mumbai to Mangalore as SG 479 and the names of the said employees was indicated as Shri Mohammed Anif and Shri Odiyanda Ayyappa Muddaiah. The DRI officers identified the said two employees of M/s. Spice Jet Airlines and on the arrival of the said flight boarded the same after all the passengers disembarked and directed the said employees to retrieve the gold hidden in the seat. Shri Mohammed Anif went to seat 12A and retrieved two packets deftly concealed inside the backrest cushion of the said seat. The palm seized packets were heavy and were covered with ash coloured adhesive tape which was used to ....
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....n all the three of them. 2.3 Shri Rajendra Prakash Pawar alias Raju alias Rajubhai in his voluntary statement dated 26.7.2018 and 28.11.2016 inter alias admitted that he attempted to smuggle the said gold with the aid and abetment of Shri Mohammed Anif and Shri Odiyanda Ayyappa Muddaiah with intent to evade payment of customs duties. He also admitted that he had exchanged messages with Shri Mohammed and Shri Odiyanda Ayyappa Muddaiah for the said activity through Spice Jet flights operating between Dubai, Mumbai and Mangalore and would meet the two in the vicinity of airport to collect the retrieved gold and that he would pay them Rs. 10,000/- per kg on each occasion and that he has done such smuggling activity about seven times. He has stated that he indulged in smuggling activity due to loss incurred in his business and that he used to get details of from one Abdullah of Dubai on "whatsApp" for the said activity and that he deleted all such messages once he knew about the instant seizure and the Dubai based party who used to arrange carriers stopped messaging him after the said case. He has also stated that the investment in the said activity was done by him and gold smuggled ea....
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....d that the original authority failed to produce any evidence of money trail to prove that they were accomplished to further the intention of the activity of smuggling. He further submitted that the penalty under Section 112(a) of the Customs Act can be imposed only on acts of omission or commission relating to the goods and that the appellants have neither omitted nor committed anything in relation to any goods. He further submitted that the appellants' statements have been relied upon but they were not examined in chief and no cross-examination was conducted and therefore, no reliance would be placed on such statements and WhatsApp communication which cannot be a conclusive evidence to prove that appellants were involved in smuggling activity. It is his further submission that as per Section 138B of the Customs Act, 1962, where the statements of any person are to be considered as an evidence, then the person whose statements are being relied upon should be examined before the officer and also to be allowed to cross-examine it. In support of this submission, he relied upon the CESTAT Chennai Final Order No.42569/2018 dated 9.10.2018 in Taxmo Industries in Appeal No. E/399/2012. He ....
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.... Knitwear: 2018 (362) ELT 819 (Tri.-Del.) 6. After considering the submissions of both the parties and perusal of the material on record, I find that the original authority has examined all the material facts and the statements given by the appellants before the Custom Officer wherein they have clearly confessed their guilt. Further, I find that the Commissioner (A) has also considered all the submissions raised by the appellants before him regarding their defence and after considering the entire evidence, the Commissioner (A) has rightly come to the conclusion that appellant No. II (Rajendra Prakash Pawar) is the key conspirator and mastermind in the illegal activity of contraband gold. He is the sole investor of money and who has sponsored in procuring the contraband gold into India through carriers supposedly arranged by Shri Abdullah in Dubai. The Commissioner (A) further observed that he devised entire plan and put in place all suitable arrangements to execute the illegal act by dubious way of concealing the impugned goods to the seats allotted to the carrier and appellant-I and III have aided and abetted the illegal activity on payment of hefty remuneration. It is pertinent ....