RAMESH CHANDER Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS stay application is filed by the applicant for the waiver of pre -deposit of penalty of Rs. 25,000/ -and stay of recovery proceedings.

(2.) THE case of the department is that the appellant was involved in smuggling gold biscuits. Accordingly, 16 gold biscuits weighing 1866.240 valued Rs. 6,38,254.08 were confiscated under Section 111(d) of the Customs Act, 1962 in addition to imposing personal penalty of Rs. 25,000/ - under Section 112 of the Customs Act, 1962.

(3.) ARGUING for the applicant Shri K.C. Sachar, learned Advocate submitted that the order is not sustainable in the eye of law as it suffers from a number of discrepancies. He said that sub -section of Section 112 of the Customs Act, 1962 was neither mentioned in the show cause notice nor in the impugned order and, accordingly, the penalty imposed is to be set aside as it was held in the case of Balbir Singh v. Collector of Customs, reported in 1991 (56) E.L.T. 64. He said that in the internal page 7 of the impugned order the Adjudicating Authority has observed that no evidence has been produced that the appellant was involved in smuggling gold into India. He argued that the penalty is unwarranted as the appellant was exonerated by the Collector as per his findings. Shri Sachar said that according to the allegations contained in the show cause notice gold was recovered from the residential premises of the appellant, whereas the Collector has given the finding that the gold was recovered from outside the house of the appellant. He contended that proceedings were concluded based upon the earlier statement given by the appellant but without taking into consideration of the retracted statement and referred to the decision of the Tribunal in the case of Assistant Collector of Central Excise v. Duncan Agra Industries Ltd., reported in 1992 (57) E.L.T. 545 (A.P.). He submitted that according to the department the theft has taken place in the house of Kishan Lal but no theft has taken place as it was stated by Kishan Lal. Under these circumstances, he submitted that prima facie case is in favour of the party and requested for unconditional stay.