Page 181 - ELT_15th August 2020_Vol 373_Part 4

2020 ] MOHAMMED ANIF v. COMMISSIONER OF CUSTOMS, MANGALORE 515

Penalty - Smuggling of gold - Adjudication based on statement record-
ed by appellant - No contention that statements were coerced - Finding of Tri-
bunal that statements admitting to involvement in smuggling activity given
before Customs Officer, never retracted and proved from WhatsApp commu-
nication, proper - Penalty imposed rightly affirmed - Section 112(a) of Cus-
toms Act, 1962. [paras 10, 11]
Appeal dismissed
REPRESENTED BY : Shri Dakshina Murthy R., Advocate, for the
Appellant.
Shri K.V. Aravind, Advocate, for the Respondent.
[Judgment per : Aravind Kumar, J.]. - Heard Sri. Dakshina Murthy R,
Learned Counsel appearing for appellant and Sri. K.V. Aravind, Learned Stand-
ing Counsel appearing for respondent. Perused the records.
2. Based on specific intelligence input received by Directorate of Reve-
nue Intelligence, Mangalore (for short ‘DRI’) that one passenger by name Sri.
Abdul Kader an Indian citizen traveling from Dubai to Mumbai had concealed
certain contraband gold under his seat No. 12A and had disembarked at Mumbai
International Airport leaving the gold in the said seat by making arrangements
for said gold to be retrieved with the assistance of two employees working at
Mangalore International Airport (Domestic) from the aircraft left from Mumbai
to Mangalore and the names of the said employees was Sri. Mohammad Anif
(Appellant herein) and Sri Odiyanda Ayyappa Muddaiah, DRI Officers had
identified the said employees and had retrieved the gold hidden in the seat
which was concealed in 2 deftly concealed packets inside the backrest cushion of
said seat on disembarkment of all the passengers. Said package came to be seized
under panchanama and proceedings which were initiated resulted in imposing
of penalty of Rs. 11,28,934/- under Section 112(a) of the Customs Act, 1962 and
seized goods came to be confiscated under Section 111 of the Act on the ground
that they were smuggled gold vide order dated 4-8-2017.
3. Being aggrieved by the said order an appeal came to be filed before
Commissioner of Customs (Appeals) contesting levy of penalty. After affording
an opportunity appellate authority by its order dated 28-5-2018 dismissed the
appeal by upholding the order-in-original passed by the Additional Commis-
sioner of Customs. Further appeal to the CESTAT did not yield any fruitful result
to the appellant and second appeal also came to be dismissed. Hence, this appeal
contending inter alia that based on the statements of a co-employee penalty has
been levied and statement recorded under the Customs Act could not have been
relied upon for passing the impugned order in original and entire procedure
adopted by the original authority is erroneous. Contending question of law for-
mulated in the appeal memorandum would arise for consideration, appellant has
prayed for appeal being allowed.
4. Sri. Dakshina Murthy, Learned Counsel Appearing for appellant by
reiterating aforesaid grounds urged in the appeal would also hasten to add that
order-in-original has been passed by authority, which is not competent to pass
such order under Section 120A of the Customs Act, 1962 and as such said order
which has since received the confirmation by the appellate authority, is liable to
be set aside by formulating the substantial question of law as formulated in ap-
peal memorandum and answering the same in favour of appellant.
EXCISE LAW TIMES  15th August 2020  181