SUDHIR DUTT MITTAL Vs. CC

JUDGEMENT

(1.) THE above appeal arises out of the order of Commissioner of Customs, New Delhi who has imposed a penalty of Rs. 10 lakhs upon the appellant herein for being concerned with illegal acquisition/possession/disposal of cellular phones and computer parts of foreign origin recovered from Maruti 1000 car bearing registration No. DLI -ICE -7139, on 19.10.1996 at Adhyatmik Nagar Police Check Post in Ghaziabad, UP. There were two occupants in the car at the time of interception, one Shri Ramesh Ghosh and the other Shri Sheesh Pal. The car was rummaged at the office complex of Revenue Intelligence Directorate at Lodhi Road, resulting in recovery of the above mentioned contraband goods which were secreted in the car in two specially made secret cavities in the floor of the car, beneath the two front seats of the car. The investigation revealed that Ajay Mohpal and Sudhir Mittal were engaged in smuggling of these items from Nepal into India, that they had carried out smuggling of these items in the past also, that in the present case, Sudhir Mittal had informed Ajay Mohpal on 18.10.1996 that the vehicle containing the smuggled goods would reach him some time on 19.10.1996 morning along with Ramesh Ghosh and Sheesh Pal. From the statements of Sheesh Pal, it had transpired that Sudhir Mittal who had sent Sheesh Pal for working as a driver with Ajay Mohpal. The Department issued several summons to Sudhir Mittal, but he never appeared in response thereto. Sudhir Mittal did not file a reply to the show cause notice. The finding of the adjudicating authority on Sudhir Mittal's liability to penal action is contained in para 50 of the impugned order which reads as under:

(2.) IN the appeal memo, the appellant has stated that Ajay Mohpal's statement was retracted; however, there is nothing on record to prove this. Ajay Mohpal has not also taken this plea that he has retracted his statement. There is no mention of the retraction in the impugned order and further Ajay Mohpal did not appear for personal hearing. Therefore, there is nothing to establish that Ajay Mohpal had resiled from his statement recorded under Section 108 of the Customs Act, 1962. The appellant has also urged that there is nothing in the statement of Sheesh Pal to implicate him; however, we find that Sheesh Pal has stated that he was sent to Ajay Mohpal for the driver's job by Sudhir Mittal and it was as per the directions of Sudhir Mittal and Ajay Mohpal that he (Sheesh Pal) left for Nepal on 15.10.1996 in the Maruti 1000 car.

(3.) SINCE the evidence in the form of statements of Ajay Mohpal and Sheesh Pal clearly bring out the guilt of the appellant, we hold that the penalty imposed upon him requires to be sustained. However, having regard to the facts and circumstances of the case, we reduce the penalty to Rs. 5 lakhs.