ORDER
V.K. Ashtana, Member (T)
1. This is an appeal against Order-in-Original No. 3/97, dated 29-9-1997 passed by Commissioner of Central Excise & Customs, Cochin wherein, inter alia, penalty of Rs. 50,000/- has been imposed on the present appellant under Section 112(a) of the Customs Act.
2. Heard Shri Mohammad Zahib and Shri P.T. Ramesh, learned Advocates for the appellant. They submitted that the brief facts of the case are that after the Gold Biscuits were seized from the one possession of Shri Jamal Kunnummel while he was in transit in a bus, the present appellant was apprehended near the said Shri Jamal’s residence in a Jeep along with some other persons who fled from the Jeep. It is alleged by the department that the said Jamal implicated the appellant as the person who was supposed to receive the Cold and to pay him a sum of Rs. 47,000/- as remuneration for transport of the Gold and also to take possession of the said Gold.
3. Learned Advocate submits that the Commissioner in his Order-in-Original has already ordered that there was no evidence to show that Rs. 47,000/- another Rs. 3,000/- found on the person of the appellant was in fact sale proceeds of the Gold and therefore the same currency was released, though it was later appropriated towards payment of the penalty imposed on the appellant. Learned Advocate further submits that at no point of time any contraband was found on the person of the appellant or the Jeep in which he was travelling. He further submits that thereafter the appellant was arrested and taken to the Magistrate’s Court. He had given his version in his Bail Application in the said Court to the effect that he was going elsewhere for the purpose of negotiating the marriage of his sister as well as to see some Doctor. Learned Advocate submits that this was effective retraction of the statement recorded by coercion by Customs Officers from him before he reached the Court even though this was not contained in the bail application and was not made personally before the Magistrate. He further submits that further retraction to customs department could not made about one month’s time because he was detained in the custody and was not free man to consult his lawyer about such retraction. However, he managed after one months time to send retraction by law to Jail authorities through Dept. Learned Advocate further submits that the main ground on which the penalty has been imposed in the Order-in-Original impugned is that the whereabouts of one Shri Salih Koya Thangal. The appellant had claimed as having given him money of Rs. 50,000, was not made available by the appellant before the department. Learned Advocate now submits that they have since submitted an application to accept as additional evidence at this stage and an Affidavit from the said Shri Salih Koya Thangal to the effect that it was he who had lent Rs. 50,000/- to the appellant for the purpose of giving it to his associate, one Shri Shafi . Learned Advocate submits that the said person who has now given the Affidavit was out of the country and therefore this affidavit could not be secured earlier and placed before the adjudicating authority. He therefore submits that except for the statement by the co-accused namely Jamal, there is no evidence against the appellant. Even the statement of Shri Jamal was recorded by the Customs Offi-cers after the appellant was apprehended and therefore the Jamal had seen physical description of the appellant and had falsely implicated him.
4. Heard Shri S. Sankaravadivelu, learned JDR who reiterates the order impugned.
5. I have carefully considered the submissions on both sides and the records of the case. From a perusal of the Order-in-Original impugned, I find that the learned Commissioner has not confiscated the sum of Rs. 50,000/- as sale proceeds for lack of evidence. Thus, even at the original stage, it is now held that Rs. 50,000/- found with the appellant was in no way connected with the smuggling operations of the Gold. Therefore, the only other piece of evidence which is on record against the appellant is that (a) that he was apprehended near the house of Shri Jamal from whose custody the contraband had been recovered earlier, and (b) that in his statement Shri Jamal had implicated the appellant. Appellant’s own statement was recorded by him after 1 month since he was in judicial custody and because his bail application had narrated a different set of facts showing the events leading to his arrest. Therefore, in view of the fact that appellant was in Jail, the retraction letter cannot be totally brushed aside even though it was made after one month.
6. Under these circumstances, I find that the only evidence against him is the implication by Shri Jamal in his statement. It is well settled law that no penalty could be levied on a person who is accused of a crime solely on the basis of evidence given by the co-accused. In this case, it is clear from the records as well as the submissions made that there is no other evidence which corroborates the implicatory statement of Shri Jamal as far as Shri K.Moideen is concerned. The only corroboratory evidence was the money found from the appellant which the original authority has himself come to the conclusion that the money does not represent the sale proceeds . As against this, the appellant has given an explanation, which is now, though belatedly, supported by an affidavit of Shri Salih Koya Thangal to the effect that the money belonged to him and the appellant was merely a career of that money since he was going to the same place where the money was to be given to Shri Shafi. I find that in view of this explanation given by the appellant and also in view of lack of any other corroboratory evidence against him, the benefit of doubt would go to the appellant as regards the imposition of penalty is concerned. The Order-in-Original impugned is therefore modified to the extent that no penalty is to be levied on the appellant. The appeal therefore is allowed in the above terms, with consequential relief as per law.