Page 269 - ELT_1st September 2020_Vol 373_Part 5

2020 ] LIEUTENANT COLONEL GANESAN S. (RETD.) v. COMMR. OF CUS., CHENNAI 707

therefore, it is a fit case for confirming the penalty imposed for an anti-national
activity.
4.2 She would further submit, from the call records, that there have
been calls to and from the appellant’s mobile phone from 4:18 a.m. on the event-
ful day i.e., 10-4-2015 from Mr. Francis, who was apprehended at the Air Cargo
Complex and it was this Francis who was in touch with the main accused i.e.,
Mr. Shahul Hameed and Mr. Khaja Mohideen ; that Mr. Karunanithi and Mr.
Francis worked for the security agency run by the appellant and it is their state-
ments that the appellant knew about the gold being brought in which was to be
illegally exported.
5.1 In rejoinder, Learned Advocate for the appellant would submit that
the penalty has been levied solely based on the statements of the co-accused and
that those very statements were later on retracted. Moreover, when the appel-
lant’s statement was recorded, the appellant has categorically denied as to his
involvement in any way by stating that he was not aware of any gold smuggling
and that he had not given any instructions in this regard to either Mr. Francis or
Mr. Karunanithi.
5.2 He further contended that, according to the DRI, the main persons
involved in the smuggling were Mr. Thameen of Singapore, Mr. Khajabhai and
Mr. Shahul Hameed, who were never apprehended, who alone perhaps could
have spoken about the involvement or otherwise of the appellant; that in the ab-
sence of their statements, the levy of penalty is not correct.
6. Heard both sides, perused the documents placed on record and also
the decisions submitted during the course of arguments. From the documents
filed/placed on record, we do not have the benefit of the statements of Mr. Fran-
cis, Mr. Karunanithi, Mr. Shahul Hameed, etc., recorded by the authorities. Fur-
ther, the so-called retracted statement is also not there on record, but for the men-
tion of coercion before the Hon’ble Magistrate.
7. The seizure at the Air Cargo Complex happened on 10-4-2015 fol-
lowed by a search operation in the residence of this appellant and thereafter, the
Show Cause Notice dated 7-10-2015 came to be issued accusing all the accused
including the appellant herein, proposing confiscation under Sections 111(d),
111(i) and 111(l) of the gold bars of foreign origin seized, apart from imposition
of penalties under Section 112 and Section 114AA, separately, of the Customs
Act, 1962. From the reply furnished by this appellant vide letter dated 2-12-2015,
the appellant has inter alia explained that he was not involved in any way in any
of the activities of the other accused in smuggling the gold biscuits.
8. The Revenue has fastened the appellant with penalty based on the
statements of the co-accused and the call records. This appellant has explained
that there are more than 120 employees in his firm and that, as the head of the
firm, he used to get calls even during odd hours informing about the security
scenario and manpower deployment at the Air Cargo Complex and that he
would also make calls in turn, to ascertain further details. From this, it is perhaps
routine that the appellant would get or make calls even during odd hours and
hence, the calls recorded may not be significant enough to point out that the ap-
pellant was actively involved, as an abettor, in the conspiracy unless the record-
ings are in the form of conversations, which is not the case here. But a close look
at the call records which speak otherwise, requires a lot of explanation.

EXCISE LAW TIMES  1st September 2020  269