NARESH KUMAR MITTAL Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) ALL the three appeals are being disposed of by a common order as they arise out of the same impugned order of the Commissioner of Customs, Patna. Vide the said order, the Commissioner has confiscated Shahtoosh and Pashmina Raw absolutely and imposed penalties upon the owner of the goods in question as also upon the various other persons. The appellants involved in the present appeals are not concerned with the confiscation of the Shahtoosh Shawls. They have challenged the imposition of penalties upon them as detailed below : -

(2.) SHRI Ashok Mehta, learned Advocate appearing for Shri Arvind Gupta submitted that the penalty had been imposed upon him under the provisions of Section 112(b) of the Customs Act, 1962. Briefly stated the facts of the case leading to imposition of penalty upon the appellants are that 39 bales of Shahtoosh and Pashmina Raw Wool were seized by the Customs Officers on search of a godown located at G -44, Lawrence Road, Delhi. Investigations conducted by the Customs revealed that the goods belonged to one Shri Raj Kumar Aggarwal and another person Shri Sandeep Kumar Aggarwal. The statements of these persons were recorded. Neither of them implicated the appellant, Shri Guptas name. They had only submitted that the goods were earlier stored in the godown of Shri Narendral Pal Gupta at the instance of Shri Raj Kumar Aggarwal. Thereafter, the employees of the godowns and the other workers were also interrogated. But nobody named the appellant, Shri Arvind Gupta. During interrogation, statement of one Shri Rajesh Goyal who was friendly with Shri Aggarwal, was recorded, who had deposed that he had heard Shri Raj Kumar Aggarwal, talking to Shri Arvind Gupta on phone. This factor of Shri Aggarwal having called Arvind Gupta, was also confirmed from the records of the phone -calls made by Shri Aggarwal from his hotel room. Shri Ashok Mehta also submitted that no proceedings were initiated against Shri Rajesh Goyal and penalty has been imposed upon the appellant only on the basis of the statement made by Shri Rajesh Goyal. Shri A. Mehta, learned Advocate also argued that the statement of Shri Rajesh Goyal was in the nature of a hearsay evidence that he (Raj Kumar) has told to Shri Arvind Gupta for finding a prospective buyer for the imported raw wool. Taking us through three statements of Shri Rajesh Goyal recorded on different dates, he submitted that there was material difference in all the three statements and Shri Goyal had been changing his stand. He had very clearly admitted in one of the statements that he did not know Shri Arvind Gupta and had heard his name through Shri Aggarwal. He submitted that the appellant in his statement had denied knowing Shri Raj Kumar Aggarwal and having received any phone call from him from his hotel room. On a query from the Bench that we find that there was a number of phone calls having been made to his residence by Shri Aggarwal, Shri Mehta, learned Counsel clarified that there were so many other family members also in the house including the servants of the house and it cannot be established that he was the one who received the call. He, however, admitted of having known Mahesh Maheswari of Nepal who had allegedly sent the goods to India. Learned Counsel clarified that he had friendly terms with Shri Mahesh Maheswari of Nepal. He also relied upon the judgment of the Honble Supreme Court in the case of C.B.I. v. V.S. Shukla and Others reported in JT 1998 (2) SC 172.

(3.) ARGUING for Shri Narendra Pal Gupta, Shri K.P. Dey, learned Advocate submitted that Shri Gupta was the owner of the godown where the goods were kept for four to five days. He clarified that since Shri Pal Gupta was known to Shri Maheswari, he was requested by him to keep the goods in his godown. He also submitted that the items were imported from Nepal under a proper bill of entry and all the documents showing the importation of the goods were seen by him before allowing Shri Maheswari to keep the goods in his godown. Shri Dey, learned Counsel submitted that he was not a technical person so as to differentiate the Goat -hair (as described in the documents) or the Pashmina Raw Wool.