Case Law Details
Shri Vijay Kumar Vs Commissioner of Central Excise (CESTAT Kolkata)
Introduction: The case of Shri Vijay Kumar versus the Commissioner of Central Excise, adjudicated by CESTAT Kolkata, revolves around penalties imposed under Section 112 of the Customs Act, 1962. The essence of the matter is the absence of knowledge regarding gold concealed in luggage.
Analysis: Officers of the Directorate of Revenue Intelligence (DRI) intercepted four individuals, including the appellants, along with their luggage at New Jalpaiguri Railway Station. Upon inspection, gold bars were found concealed in the handlebars of trolley bags. Shri Pahalad Soni, a member of the group, admitted to the smuggling operation orchestrated by an individual named Chhotu. However, the appellants denied any knowledge of the contraband.
The appellants asserted that they were unaware of the gold concealed in the bags, emphasizing that the bags were exchanged by Shri Pahalad Soni and Chhotu. Despite being implicated in the smuggling operation, the appellants maintained their innocence, stating they were bona fide carriers.
The tribunal noted the absence of any admission of guilt by the appellants regarding their knowledge of the gold smuggling. Moreover, Shri Pahalad Soni, considered the leader of the group, confessed to exchanging the bags containing gold. Given these circumstances, the tribunal concluded that the appellants were innocent bystanders in the smuggling affair.
Conclusion: CESTAT Kolkata ruled in favor of the appellants, emphasizing their lack of knowledge regarding the concealed gold. As Shri Vijay Kumar and others were not complicit in the smuggling operation and had no awareness of the contraband, the penalties imposed under Section 112 of the Customs Act, 1962, were deemed unjustifiable and thus deleted.
This decision underscores the importance of establishing culpability and knowledge in cases of alleged customs violations, ensuring fair adjudication and protecting innocent parties from undue penalties.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Both are in appeals against the imposition of penalties under Section 112 of the Customs Act, 1962.
2. The facts of the case are that an acting on the intelligence, the officers of DRI, Siliguri, Regional Unit on 23.06.2013 at 4.15 PM in Dibrugarh-Howrah Kamrup Express, which was arrived at Platfrom No.3 of New Jalpaiguri Railways Station, boarded the said Coach No.BI of the said train and identified four persons, two of whom were ladies and all the four are intercepted along with their accompanying luggage were brought down from the train and taken to the DRI Office. Apart from the appellants, Shri Pahalad Soni and Ms.Priyanshu Kumari were also apprehended. Shri Pahalad Soni was the leader of the group and confessed that the contraband gold was secretly concealed in the handle bars of the four trolley bags that they were carrying. Then the Officers checked the trolley bags in the presence of two witnesses and after moving the cloths and other goods from the trolley bags, those empty trolley bags found to be heavy containing some heavy goods. After dismantling the handle bars of the trolley bags, it was found that each of the handle bars of the trolley bags was stuffed with pieces of yellow metal believed to be gold. These pieces of gold bars were securely wrapped in carbon papers and black self-adhesive tapes. From the four bags, a total 40 pieces of yellow metal bars were recovered. These were examined by a goldsmith and found to be quality of gold. All the 40 pieces of yellow metal bars defaced in order to remove the markings on them and the DRI Officers weighed each of the 40 pieces of gold and it was found to be 14.53935 kgs.
2.1 Gold were seized and the appellants were detained. Thereafter, the statement of Shri Pahalad Soni was recorded. Shri Pahalad Soni stated that he is a hawker of silver ornaments. During the course of his profession, he came into contact with different traders of gold and silver of Patna and Kolkata. He used to keep requesting all his known gold traders to give him any kind of work, which can fetch him a handsome money. About 3/4 months ago, one person contacted him over his phone and introduced him as Chhotu of Dimapur. The said Chhotu has procured his Mobile Number for one of his well known gold trader in Kolkata.
2.2 The said Chhotu asked him whether from Dimapur to Kolkata, he is ready to carry the gold against a handsome money, he readily agreed. Then Chhotu instructed him to come to Dimapur and meet him and three month ago, he went to Dimapur and met Chhotu. He does not know Chhotu’s address.
2.3 Chhotu told him that he smuggled gold from Myanmar to India and the same has to be supplied to different parts of India through different carriers, if he carries the smuggled gold to Kolkata, he will give him a handsome remuneration per trip. He agreed with the said proposal.
2.4 In the month of April, 2013, he brought another consignment of smuggled gold from Dimapur to Kolkata.
2.5 In the first week of June, 2013, Chhotu again contacted him and told him that this time, he had to carry a big consignment of smuggled gold from Dimapur to Kolkata. Chhotu also told him that this time there would be four trolley bags. So he asked him to travel with some of his family members, then it would be easier for him to bring the consignment from Dimapur to Kolkata. So, he invited his sister-in-law and her family to Kolkata for a visit. The family members of sister-in-law arrived at Kolkata. After their arrival, he offered them for a trip to Kamakhya, Assam. Chhotu offered him to come to Guwahati by flight. His sister-in-law and her hushand and their daughter, Priyanshu Kumari, reached at Kolkata on 18.06.2013 and all of four left Kolkata in the afternoon of 20.06.2013 and arrived at Guwahati in the evening of 20.06.2013 by Kolkata-Guwahati Flight.
2.6 On 21.06.2013 in the morning, he along with his three relatives visited to Kamakhya Temple and in the evening, they boarded on a train for Dimapur and reached at Dimapur at 5.00 am. They stayed at Dimapur Railway Station waiting Hall. At Dimapur, his relatives left railway station for a tour of the town. In the meantime, Chhotu came to railway station with some other persons along with four trolley bags where smuggled gold bars were concealed in the rod of metal handles. Chhotu also handed over a railway ticket for journey from Dimapur to Howrah by Kamrup Express on 23.06.2013. They started their journey in Coach No.BI, Berth No.53 & 54.
2.7 He also stated that at Howrah Station, a person named Dipak would contact him who took delivery of the said luggage bags as previous time. Dipak’s height is about 5”7’, black complexion and clean shaven. Dipak is a resident of Muzaffarpur, Bihar.
2.8 In these set of facts, the case was booked of smuggling of gold by Shri Pahalad Soni with advice of the appellants. The statements were also recorded wherein they stated that as they were gone to visit to Dimapur, during that period, the trolley bags were also exchanged and they were not having any knowledge about the said smuggled gold in the bags, but the case was booked under Section 112 of the Customs Act, 1962 and the appellants were avoided to involved in the smuggling of gold.
2.9 Against the said order, the appellants are before us.
3. None appeared on behalf of the appellants, nor any request for adjournment has been received.
4. Heard the ld.A.R. for the Revenue.
5. On going through the impugned order, we find that the appeals can be disposed off at this stage. Therefore, the appeals are taken up for consideration.
6. The ld.A.R. for the Revenue supported the impugned order.
7. Heard the ld.A.R. for the Revenue and perused the records.
8. We find that the appellants have never admitted that they were having any knowledge of smuggling of gold. The trolley bags were exchanged by Shri Pahalad Soni and Chhotu, which were having gold in the handle. They were bonafidely carrying the bags. Therefore, as they have no knowledge about the gold concealed in the bags and these facts are not disputed by the Revenue. We also find that that the appellants had never admitted that they have any knowledge during carrying of the gold in the bags and Shri Pahalad Soni, who is held to leader of the group, has admitted that he has changed their bags by the trolley bags which are carrying gold.
9. In that circumstances, the appellants are totally innocent in the said act of smuggling of gold by Shri Pahalad Soni or Chhotu. Therefore, the penalties on the appellants are not imposable.
10. Accordingly, the penalties imposed on the appellants are set aside and the appeals are allowed with consequential relief, if any.
(Operative part of the order was pronounced in the open court)
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