BALWANT H. RANAWAT Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The brief facts of the case are that search of the premises of M/s. Acid Factory, Dahisar (East), Mumbai during the midnight of 5/6 December, 1991 resulted in the recovery of 5 silver ingots of foreign origin which were kept concealed in a pit, dug in the premises. Since no documents for legal import or possession or acquisition were produced, silver ingots totally valued at Rs. 13.23 lacs were seized under the reasonable belief that they had been smuggled into India. The 4 labourers present in the premises during the search stated that the five silver ingots were brought in Mahindra Jeep on the evening of 5/12/1991 by the owner of the factory, Shri Chunilal Choksi and his son, Shri Anand Choksi and labourers were asked to keep them concealed in the pit and they were to be converted into Chorsas in the late night of 5/6 December, 1991 as instructed by Anand Chokshi. The statements of Chunilal choksi and his son, Anand Choksi were recorded on 6/12/1991 and 7/12/1991 in which they both admitted having brought the 5 silver ingots to their premises and Anand Choksi stated that Balawant Ranawat has given delivery of those 5 silver ingots for conversion into chorsas of 1 kg each for monetary consideration. On 16/12/1991, the statement of the appellant herein was recorded wherein he stated that he was a middleman in the deal between Anand Choksi and one Gulab Wagadia (Soni), who was the real owner of the 5 silver ingots and that he was going to get a commission of Rs. 5/ - per kg. fore getting the silver ingots converted into chorsas. Show Cause Notices were issued to Chunilal A. Choksi, Anand Choksi and the Appellant proposing confiscation of the silver ingots and the Jeep used for transporting them, and proposing imposition of penalty against them. The corrigendum was issued proposing imposition of penalty on Gulab C. Wagadia (Soni). The adjudicating authority ordered absolute confiscation of the silver and the Jeep and imposed penalty of Rs. 2.5 lacks each, on Chunilal Choksi and Anand Choksi, and a penalty of Rs. 1 lac on Balwant Ranawat under Section 112(b)(i) of the Customs Act, 1962. Hence, this appeal.

(2.) I have heard Shri Arun Mehta, Learned Advocate and Shri J.M. George, Learned D.R.

(3.) The seized silver has been held to be liable to confiscation for the reason that it was tested and found to be of, 999 purity, that nobody came forward to claim the silver, that it was concealed in the pit and that it was to be converted into chorsas stealthily during the night and further for the reason that since silver was an item notified under Section 123 of the Customs Act, the burden of proving that it had been smuggled into India lay upon the person from whose possession it was seized and such burden was not discharged by either Chunilal Choksi or Anand Choksi. Once seized silver as rightly being held to be liable to confiscation, the next thing that is the subject seen is whether the Appellant herein is in any way connected with the silver, so as to hold him liable to penalty under Section 112 of the Customs Act, 1962. In the present case, it is clearly brought out from the statements of Anand Choksi and the Appellant's own statements that the Appellant was dealing in the silver which was seized in this case. The Learned Counsel's submission that the statement of Anand Choksi has been retracted and therefore, can not be relied upon, is not acceptable because of the large gap of about 15 days between Choksi's Statement and its retraction of 20/21 January, 1992. Moreover, the Appellant has no where denied that he had handed over the 5 silver ingots seized in this case to the Choksis and his statement itself is inculpatory as it clearly shows that he was the middle man between Anand Choksi and Gulab C. Wagadia in the deal covering the 5 silver ingots which are the subject matter of this case. Hence, ingredients of Section 112 are clearly attracted against the Appellant and penalty on him is sustainable. However, having regard to the totality of facts and circumstances of the case, I reduce the penalty to Rs. 25,000/ -