ORDER
Jyoti Balasundaram, Member (J)
1. The brief facts of the case are that on 3-2-1994 Customs Officers examined a consignment which had arrived by Air India Flight from Singapore consigned to M/s. Zet Sun Inc. Impex at Khar, Bombay and recovered computer parts valued at Rs. 40 lakhs; which was seized under the reasonable belief that they had been smuggled into India. Enquiries revealed that the owners of the premises of the consignee were one Iftikar Shaikh and his wife Lubna Shaikh; that such premises had been given on leave and licence basis for 11 months starting from 1-12-1992 to one Yunus Yasin Shah who had floated the firm M/s. Zet Sun Inc. Impex, in partnership with one Sahil Habib Ismail. After the expiry of the lease period the premises were given on leave licence basis to the appellant herein who was running a shop in the name and style of M/s. Green Channel. Statements of the owners of the premises were recorded.
2. The appellant’s statement was recorded on 3rd February, 1994 under Section 108 of the Customs Act, 1962 wherein he stated that Mohd. Yunus Yasin Shah had approached his salesman Afzal and stated that he had imported some goods and that he would personally come and collect the correspondence pursuant to the said import from the shop. He, however, denied knowledge or involvement in the goods under seizure. Statements of Shri Salim Haji Ahmed Mo-tiwala and Afzal Mehmood Mozawala, employees of M/s. Green Channel were recorded in which they had denied knowledge about seizure of the computer parts. The appellant’s further statement was recorded on 28-3-1994 wherein he stated that one Yunus had come to his shop and told him that he had applied for Import-Export Code; that any correspondence in his name (Yunus’s name) be delivered to him as he had earlier been using the premises as his office. That Yunus did not come subsequently to enquire about any correspondence. Summons to the appellant was served on 21-4-1994 to present himself in the office of Air Cargo Complex, Intelligence Unit during, which he is stated to have verbally confessed that he, along with four others, financed the import of 8 consignments (one of which is under seizure in the present case) through one Sahil who had floated the firm M/s. Zet Sun Inc. Impex in partnership with Yunus. This was recorded in the panchnama. The appellant was arrested and released on bail. In his subsequent statements recorded in the months of December and July, 1994 under Section 108 of the Customs Act. He continued to deny any knowledge or involvement with the goods under seizure.
3. Show cause notice proposing confiscation and imposition of penalty was issued to M/s. Zet Sun Inc. Impex and others including the appellant. The adjudicating authority ordered absolute confiscation of the goods covered by airway bill and imposed penalties on the importer and others. He imposed penalty of Rs. 1 lakh on the appellant herein. Hence this appeal.
4. I heard both sides.
5. The only piece of evidence used against the appellant is the panchnama in which it is recorded that he along with others had financed the import of the goods in question (which were confiscated for having been imported without licence). To my mind, it is not a statement in the eye of law. In the statements recorded under Section 108 the appellant has denied knowledge or any connection with the seized goods. Further, none of the co-noticees have implicated the appellant. I therefore hold that the material on record is not sufficient to link the appellant with any knowledge that the goods in question were liable to confiscation and that consequently he was liable to penalty. The department has not discharged the burden of proof cast upon it to establish that the ingredients of Section 112, under which penalty has been imposed, are made out against the appellant.
6. Therefore, I set aside the impugned order and allow the appeal with consequential relief.