HIMMAT SINGH GANG Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These are four applications for waiver of pre -deposit and stay of recovery of penalty amounts, two by Tejmal Gang and the other two by Himmat Singh Gang. The lower authority imposed penalties under Section 112(b) of the Customs Act on these applicants. The authority also imposed penalties on them under Section 74 of the Gold (Control) Act, 1968. Shri Tejmal Gang in his application prays for waiver of pre -deposit and stay of recovery in respect of penalties of Rs. 25,000/ - and Rs. 10,000/ - imposed by the Commissioner under Section 112(b) of the Customs Act and Section 74 of the Gold (Control) Act respectively. The prayer of Himmat Singh Gang is for waiver of pre -deposit and stay of recovery in respect of the penalties of Rs. 1 lakh and Rs. 50,000/ - imposed by the Commissioner under Section 112(b) ibid and Section 74 ibid respectively.

(2.) Examined the records and heard both the sides.

(3.) The penalties under Section 112(b) of the Customs Act have been imposed on the applicants on the basis of a finding that they were in 'conscious possession' of the gold recovered from their residential premises. The 67 pieces of unmarked gold and the 3 sovereigns have since been released to Abdul Me -hraj S/o the deceased Abdul Sattar on the strength of a Will executed by the latter in favour of the former. It appears from the record that the Will had been executed by Abdul Sattar on the basis of his title to the goods, irrespective of possession. Insofar as possession is concerned, the clear finding recorded by the Commissioner is that, as the gold was recovered from the residence of these applicants, only they could be held to be in possession of the goods. Accordingly, he held the applicants to be in 'conscious possession' and penalised them under Section 112 (b) of the Customs Act as well as under Section 74 of the Gold (Control) Act. The order passed by this Tribunal in the earlier confiscation case shows that Abdul Mehraj (who was represented by Abdul Gaffar in the appeals before the Tribunal) has been found to be the owner of the gold on the strength of the Will executed by his deceased father. Yet another important document which is available on record is the judgment of the Court of the Special Magistrate (Economic Offences), Jaipur, which was passed in the case prosecuted against the present applicants by the Customs authorities under Section 135 of the Customs Act and Section 85 of the Gold (Control) Act. This judgment contains a clear finding that the accused (the present applicants and another) cannot be held to be in possession of the gold.