ORDER
P.K. Desai, Member (J)
1. Both these appeals arise out of common incidence but different orders passed by the Collector; one under the provisions of Customs Act and another under the provisions of Gold (Control) Act. The appeal against the order of the Collector of Customs under the Customs Act has been directly filed before the Tribunal whereas the appeal against the order of the Collector of Customs under the Gold (Control) Act was preferred to the Collector (Appeals) who rejected the same for non-deposit of the penalty amount and the present appeal is against the same order.
2. The Tribunal is competent to hear the appeal against the orders under both the Acts and, therefore, it is decided that instead of remanding the matter back to the Collector (Appeals) to hear the appeal on merits without insisting on pre-deposit so far as the appeal under the Gold (Control) Act is concerned, both the appeals are heard and are disposed of by this common order.
3. On 20-7-1983, a search was carried out in the business-cum-residential premises of both the appellants, who happen to be husband and wife and during the search 53 pieces of fabrics valued at Rs. 24197/- and 4 pieces of gold bearing markings of foreign origin totally weighing 336.800 gms. valued at Rs. 59,782/- were recovered. At the time of search, the appellant Smt. Nurjahanben was only present. She claimed that the fabrics have been gifted to her by her brother but pleaded ignorance for the gold. She could not produce any valid documents of the licit import of the fabrics recovered from the business premises were seized under the reasonable belief that they have been imported in contravention of the provisions of the Customs Act and the gold being a primary gold was also attached under the provisions both of the Gold (Control) Act, and Customs Act. During further investigation, a statement of Shri Mohmedbhai Asrafbhai was recorded, where, he pleaded ignorance about the possession and ownership of both the fabrics as well as gold. He submitted that the gold might have been purchased by Smt. Nurjahanben. While recording the further statement of Smt. Nurjahanben, she admitted the purchase of gold long back, even prior to the Gold (Control) Act coming into force and pleaded that there was no breach of any provisions of the Customs Act and Gold (Control) Act. Show cause notices were issued both under the Customs Act and under the provisions of the Gold (Control) Act and the matter was adjudicated upon, where, besides absolute confiscation of the fabrics as well as the gold pieces, personal penalty of Rs. 50,000/- imposed on each of the appellants under Sec. 112(b)(i) of the Customs Act and Rs. 30,000/- imposed on each of the appellants under Sec. 74 of the Gold (Control) Act.
4. Shri Christian, the learned advocate appearing for the appellants submitted that he was not challenging the recovery of the gold from the premises and was also not challenging the recovery of the fabrics from the possession of the appellant Smt. Nurjahanben. His main submission was to the effect that this was the act of only Smt. Nurjahanben and she was the sole person responsible and the involvement of Shri Mohmedbhai was absolutely unwarranted. He submitted that for imposing penalty under Sec. 112(b)(l) of the Customs Act on Shri Mohmedbhai some knowledge ought to have been attributed and here there is absolutely no evidence except the first statement of Smt. Nurjahanben, where she has stated that the gold did not belong to her and her husband knows about it. In his submission, in the subsequent statement voluntarily recorded, Smt. Nurjahanben admitted the possesssion of the gold and purchases thereof from the market. There was no evidence on record to implicate Shri Mohmedbhai about the same. Hence, the authorities below had materially erred in holding the appellant Mohmedbhai responsible for contravention, both under the Customs Act and Gold (Control) Act. So far as the appellant Smt Nurjahanben is concerned, Shri Christian submitted that she did possess the gold and the gold being of 999 cts. purity and was also bearing the markings of foreign origin. He has not submitted that the gold was not liable to confiscation. His only submission is that since she is an illiterate lady and she was not dealing with gold and she had purchased the same from market, a lenient view in so far as the personal penalty is concerned ought to be taken. Substantiating on that, the learned advocate referred to the decision of the Tribunal in the case of K. Thangaswamy v. Collector of Customs & Central Excise, Madurai reported in 1985 (21) ELT 525 (Tri.) and also on the decision of the Tribunal in 1988 (34) ELT 382 (Tri.), and submitted that she deserves leniency in the quantum of penalty.
5. Heard Shri Mondal, the learned SDR. He, however, submitted that the recovery of the contraband articles is an undisputed position. So far as the involvement of the appellant Shri Mohmedbhai is concerned, Shri Mondal submitted that he has claimed the ownership of the Indian currency, which was also recovered from the appellants’ premises. He drew my attention to the fact that the currency was seized from a steel trunk and the gold seized was also lying in the same steel trunk. He submitted that this indicates that Shri Mohmedbhai was fully aware of the existence of gold in his house and in that case it is not possible to believe that he was unaware of the existence of the smuggled gold. According to his submission, Sec. 112(b) also makes a person who has been responsible for harbouring and possessing any contravened articles, liable to punishment and in that way the liability of Shri Mohmedbai for penalty also exists. He further submitted that both the appellants have been dealing in cloth and they have 3 business firms. When they deal in textiles, a presumption can be raised that the fabrics recovered from the appellants were meant for business. In his submission, the presumption gets substantiated on account of the fact that 367.5 meters of fabrics have been found, which usually would not be the quantity required for the purpose of gift and therefore, the explanation rendered by Smt. Nurjahanben about the possession does not find acceptable. He also submitted that the fabrics were, during the/relevant period, notified items. Their foreign origin is not challenged and in that case there ought to be some cogent evidence to prove the licit import and mere statement of Smt. Nurjahanben is not enough to hold that the same is licitly imported and that too have been possessed by Smt. Nurjahanben. In his submission, the appellants were knowingly involved in acquiring and possessing the contraband fabrics and therefore, they become liable to imposition of penalty on that account as well.
6. Considering first the case against Mrs. Nurjahanben, it may be noted that she has preferred an appeal only against the penalty imposed under the Customs Act. She has not challenged the order imposing penalty under the Gold (Control) Act. She has admitted acquisition of gold and fabrics of foreign origin. There is no challenge on the fact that the gold seized had the markings of foreign origin. Sec. 123 of the Customs Act would stand attracted for both the seized items. The plea that she purchased gold from the open market long back is not sustainable by any cogent evidence. Her say that fabrics were gifted by her brother on his recent visit to India too is not substantiated. This appellant has therefore failed to discharge the burden of proving the licit import. Under the circumstances, the order of confiscation as also the one of imposition of personal penalty appear proper and no interference is called for.
7. The question that however deserves consideration is whether the quantum of penalty of Rs. 50,000/- imposed on her is justifiable. The total value of gold is around at Rs. 59,782 and those of fabrics at Rs. 24,197-. She has also been imposed personal penalty of Rs. 30,000/- under the Gold (Control) Act. Shri Christian has cited certain judicial pronouncements, where some leniency is shown as regards penalty amounts where the person found to have possessed smuggled items is an illiterate lady. Considering the fact that she is an illiterate lady and the quality of gold and fabrics found and also the fact that she herself is not alleged to be instrumental in act of smuggling, I hold that it would be just and proper to reduce the personal penalty to Rs. 15,0007-
8. So far as the appellant Shri Mohmedbhai is concerned, he has pleaded ignorance as regards possession of both the items. It may however be noted that panchnama indicates that the gold and the Indian currency were seized from the same trunk. In that case, it is not possible to believe that he was ignorant of existence of foreign gold in his trunk. Though there is no evidence that he was the person who acquired the said gold, except the first statement of Mrs. Nurjahanben, she has however, given a different version subsequently. Further, she is an accomplice on her own admission and before acceptance of a statement of an accomplice, some corroboration from some independent source is called for which is not available here. Thus, it may not be possible to hold him as involved in acquiring the smuggled gold or fabrics. He certainly can be attributed the knowledge and involvements as contemplated under Sec. 112(b) of the Customs Act. I, therefore hold that he too is liable for imposition of penalty. However, so far as quantum of penalty is concerned, considering the facts and circumstances here, the same appears excessive. Holding him liable to penalty under Sec. 112(b) of the Customs Act I however reduce the personal penalty to Rs. 5000/-.
9. So far as imposition of penalty under the Gold (Control) Act is concerned, there is no cogent evidence that appellant Shri Mohmedbhai had possessed the gold in violation of the provisions of Gold (Control) Act. The offence under the provisions of the said Act can be attributed only to Mrs. Nurjahanben, who has not preferred any appeal in that regard. The penalty imposed on the appellant Mohmedbhai for breach of the provisions of the Gold (Control) Act is therefore not sustainable and is set aside.
10. With the modification that penalties imposed on Mr. Mohmedbhai and Mrs. Nurjahanben, under the provisions of the Customs Act are reduced to Rs. 5000/- and Rs. 15,000/- respectively and penalty imposed on Mr. Mohmedbhai under the provisions of the Gold (Control) Act is set aside, the orders appealed against are confirmed, and appeals are disposed of accordingly. Consequential reliefs to follow.