U. ABDUL SAMAD @ SAMAD Vs. CC

JUDGEMENT

(1.) These appeals are directed against Order -in -Original No. 9/1998 dated 7.4.1998 by which the Ld. Commissioner has imposed a penalty of Rs. 1.00 lakh on Shri U. Abdul Samad under Section 112(a) and (b) of the Customs Act, 1962 and Rs. 50,000 under Section 74(a) and (b) of Gold (Control) Act, 1968.

(2.) The briefly stated facts are: Acting on information the Customs officers intercepted a Bus No. TCM 2336 at Oppilan Cross Road on Sayalkudi Ramnad Road and apprehended two persons viz. Gunasekaran and Chokkanathan, who were travelling by the said but coming from Mundal. They were not carrying any luggage but on personal search, 40 gold bars were recovered from Gunasekaran which were kept in a pouch which was tied around his waist and 35 gold bars were recovered from Chokkanathan which was also kept in a pouch which was tied around his waste. The gold bars were of foreign origin. Gunasekaran in his statement dated 1.9.89 stated that both of them belong to Rameswaran and that they developed acquaintance with one Abdul Khadar. It was also inter alia stated in the statement that the said Abdul Khadar called them and informed that he (Abdul Khadar) was working with one Yasin of Oppilan and helping him and his brother Abdul Samad in smuggling activities. Abdul Khadar met Gunasaekaran and Chokkanathan and informed them about expected arrival of gold from Sri Lanka and to be loaded at Oppilan -Mariyur coast and directed them to stay at Jeyaraman Lodge at Madurai. Accordingly they proceeded to Madurai on 28.8.89 and stayed in the said lodge. He further narrated the events which led to landing of the said 75 gold bars to the house of Yasin. Thereafter the contraband was packed in 2 khaki coloured purches and carried by them. The above statement was corroborated by Chokkanathan on 2.9.89. Shri S. Eswaran, incharge of Jeyaram Lodge confirmed that Gunasekaran and another person had stayed in the lodge on 28.8.89 and again from 30.8.89 to 31.8.89. Abdul Samad appeared before the Customs Officers and in his statement dated 19.9.89 he stated that he was running travel agency named Leo Travel Agencies and he denied that he was indulging in smuggling activities. In reply to the show cause notice dated 23.2.90 Abdul Samad stated that his name did not appear in the arrival and departure register of the lodge although he had staged in the Beauty Moon Lodge from 28.8.89 to 2.9.89 in Room No. 105. He also stated that as he was a regular customer he was not asked to sign the register. After due process of law, Order -in -Original No. 3/92 dated 3.1.92 was passed which was challenged before the Tribunal and the Tribunal vide Final Order dated 289/1992 dated 24.6.92 remanded the case for re -adjudication in the case of the present appellant after hearing him, inasmuch as in the earlier proceedings he did not attend the personal hearing. The personal hearing was first fixed on 9.12.97 and the same was cancelled through telegram dated 8.12.97. Personal hearing was again fixed on 9.3.98 and Shri S.G. Kulandaraj appeared for hearing and examined Gnanam, Manager, Beauty Moon Lodge, Madras, P. Raja Manager J.R. Tourist and Travels, Madras and V. Ponnusamy, Inspector of Central Excise. On cross examination Sri Gnanam, Beauty Moon Lodge, he admitted that no proper entries were made in the arrival and departure register as per law. He had admitted that he had known Samad, the appellant for a long time. The other persons such as S/Shri Raja Manager, TR (sic) Tourist and Travels and Sri V. Ponnusamy, Inspector, Central Ex. were also cross -examined. After analysing the evidence on record including the cross -examination of the various persons involved in the commission of offence, the adjudicating authority, in the de novo proceedings, came to the conclusion that as alleged in the show cause notice, appellant Samad is liable for penalty under Customs Act, 1962 and under the Gold (Control) Act, 1968 and imposed penalty of Rs. 1,00,000 (Rs. One lakh) and Rs. 50,000 (Rupees Fifty thousand) under the two enactments respectively, under the impugned order, which order is challenged in the present appeal.

(3.) None appeared on behalf of the appellant inspite of service of notice. Heard Ld. SDR who has reiterated that findings of the Commissioner and has categorically demonstrated that Shri Samad was staying at Madras during the period cannot be believed. She read over the reasons which are recorded in paras 15 to 18 of the findings recorded by Ld. Commissioner of Customs, Trichy, which are reproduced hereunder: "15. Evidences adduced by the defence that Shri Samad was staying at Madras during the period cannot be believed for the following reasons: There is no entry of Shri Samad's arrival and departure to Beauty Moon Lodge, Madras. Shri Gnanam, Manager of the lodge has admitted that the non -maintenance of arrival and departure register was against the law. Shri Gnanam in his stated (sic statement) has given before the Inspector of Customs and Central Excise dated 29.11.89 had stated that Shri Samad was staying in the lodge along with same other persons. It is also seen from the telephone record of the lodge that certain phone calls were made by one Shri Abrose from the Room No. 105 as well. On examination of bill No. 818 dated 3.9.89 according to which Shri Samad was reportedly paid Rs. 365 for his stay in the hotel from 29.8.89 to 3.9.89 cannot be believed as earlier Bill No. 817 dated 5.9.89 was issued to Shri Babu Rao for the arrival on 2/9 and departure on 5.9.89. 16. Moreover, Bill No. 818 dated 3.9.89 issued to Shri Samad does not contain the charges of telephone calls. It is also seen that there are two other bills in the name of Shri Samad. The bill No. 828 dated Nil shows the date of arrival as 9.2,93 and does not give particulars like Room No. departure time etc. But the bill shows the charges of room rent, local phone calls, trunk calls. The original bill was also available in the bill book. Another Bill No. 837 dated 13.9. (sic) was also issued in the name of Shri Samad. In the Bill, it has been shown that the date of arrival is 1.2.93 and the other particulars such as date of departure, room No. etc have not been incorporated but the room rent Rs. 556 and local phone charges Rs. 65 have been mentioned. Shri Gnanam, Manager of the lodge has admitted that these mistakes are due to illiterate persons employed in the hotel. No Evidence has been given apart from the above to prove whether Shri Samad was actually staying in the hotel in the said dates. The phone calls could have been made and room rent could have paid by any persons staying there in the name of Shri Samad. Shri Gnanam, Manager of the hotel has stated that Shri Samad was staying alongwith some other persons in the Room No. 105 and the above discussion shows that Shri Samad's presence in the hotel from 31.8.89 to 1.9.89 is not proved beyond the doubt. 17. As the records of the lodge were not properly maintained no reliance can be placed on them. Shri Gnanam was in the lodge from 9 AM to 7 PM only so the call made on 31.8.89 at 6.40 AM is not in his personal knowledge. As discussed above the bill book was not properly maintained and bill No. 818 dated 3.9.89 does not fit into the date sequence as the previous bill No. 817 is dated 5.9.89. Moreover there is no entry in the arrival or departure register of the lodge showing Shri Samad's stay at the hotel. The telephone record for the reasons stated above, cannot be believed, as admittedly the lodge staff being illiterate made mistakes. 18. The statements of S/Shri Gunasekaran and Chokkanathan clearly showed that Shri Samad was at Oppilan in the night of 31.8.89. So far as Shri Raje, Manager, M/s. J.R. Tourist and Travels Agency, Madras is concerned it only proved that Shri Samad was in Madras on 30.8.89 at 10 AM and on 1.9.89 after 9 PM. No records submitted by Shri Raje proves that Shri Samad had hired any vehicle on 30.8.89 after 10 AM and 1.9.89 before 9 PM. After 10 AM on 30.8.89 Shri Samad could have travelled to Oppilan and return back on 1.9.89. As per the statements of S/Shri Gunasekaran and Chokkanathan, they had met Shri Samad at the resident of Shri Yasin at Oppilan on 31.8.89 in the night. They have also stated that Shri Samad was with them in the car in which they were taken in the early hours on 1.9.89 to catch bus to Sayalkudi. As discussed above, it is seen that Shri Samad was in fact at Oppilan on 31.8.89 and 1.9.89. Shri Samad hired a vehicle from M/s. Tourist and Travels Agency at Madras on 30.8.89 from 8 AM to 10 AM and again on 1.9.89 at 9 PM. The entry of the said travel was made after wards as admitted by Shri Raja, Manager, J.R. Tourist and Travel Agency, Madras. The argument that the insertion was made after the request made claimed to be officers cannot be accepted. No such claim was made by him at any time before personal hearing was held and the pages in the register from 30.8.89 to 1.9.89 were found torn and were found elsewhere in the register. Shri Raja, Manager of the J.R. Tourist and Travels Agency explained this also that as having been torn out by the officers who took the register. The examination of Shri V. Ponnusamy, Inspector of CEX does not in any way help Shri Samad. On cross examining the Inspector unawareness regarding number of rooms, floors does not in anyway prove that Shri Samad was staying in the lodge."