COMMISSIONER OF CUSTOMS, AHMEDABAD Vs. K A PUJ

JUDGEMENT

(1.) THE Commissioner of Customs, Ahmedabad has filed these two Tax Appeals under Section 130 of the Customs Act, 1962 proposing to formulate the following substantial questions of law :

(2.) MR . R.J. Oza, learned Standing Counsel appearing for the appellant, has submitted that the Commissioner of Customs has at length discussed about the role of the present respondents in these two Tax Appeals and arrived at the conclusion that they were actively involved in the smuggling activities and thereafter, imposed the penalty of Rs. 1,50,000/ - each. He submitted that initially, Mr. Pragnesh Rajendrakumar Choksi has given his statement on 9 -4 - 1999 wherein he has specifically admitted that the delivery of the gold in question was taken from the present respondents. However, after four days, the said Mr. Choksi has retracted his statement. In his retracted statement, it was stated that the goods were purchased from M/s. Amrapali and the same were to be sent to M/s. S. Kapoor, Mumbai. He has further submitted that over and above the statement of Mr. Pragnesh Choksi, the Customs Authorities have also recorded the statement of Anilkumar Baldevbhai Patel, an employee of one angadia company named M/s. Vishnubhai Ambalal and Company, wherein also involvement of the respondents was clearly indicated. He has, therefore, submitted that there was adequate evidence to show that the present respondents have played an active role in the smuggling activities. The Tribunal has ignored all these evidences and has come to the conclusion that except the statement of the co -accused, there was no independent evidence and accordingly, the penalty was deleted. He has, therefore, submitted that the questions proposed by the Revenue are the substantial questions of law and the appeals require admission.

(3.) WE have considered the submissions made by Mr. Oza and also gone through the orders passed by the Commissioner of Customs as well as the Tribunal. The Commissioner has discussed this issue in paragraphs 48 to 58 of his order. He has not believed the retraction of Mr. Pragnesh Choksi and accepted the original statement given by Mr. Choksi. After considering the evidence on record and the findings arrived at by the Commissioner, the Tribunal has observed in paragraph 10 of its order that as a result of the revelations made by Mr. Pragnesh R. Choksi, statements of Mr. Deepak P. Vyas and Mr. Dilip P. Vyas of M/s. Krupa Traders and Krupa Ornaments were also recorded wherein they denied having any connection with the seized goods. Despite this fact, these two persons have been penalised to the extent of Rs. 1.50 lakhs each based on the initial retracted statement of Mr. Pragnesh R. Choksi and Shri Anil Patel from whom the goods were seized. The Tribunal has further observed that apart from the fact that the statements of these persons are in the nature of statements of co -accused and require independent evidence, Mr. Pragnesh Choksi has clarified in his subsequent statement that he had gone to the shop of M/s. Krupa to enquire about angadias for carrying the gold to Bombay for its onward delivery. There is no independent evidence to hold that 40 gold bars belong to Mr. Deepak or Mr. Dilip of M/s. Krupa Traders or M/s. Krupa Ornaments. The Tribunal has also recorded that these two persons, in their first statements, had denied any connection with the seized goods. The Tribunal has further observed that even if it is presumed that the delivery took place from their above concern, the said factor is not sufficient to hold that they are the owners of the gold in question, especially, in view of the explanation given by Mr. Pragnesh Choksi. The Tribunal has, therefore, found that imposition of penalty to the extent of Rs. 1.50 lakhs each on this evidence was not justified and accordingly, the penalty was deleted.