ORDER
Jyoti Balasundaram, Member (J)
1. The above appeal arises out of the order of Commissioner of Customs, New Delhi who has imposed a penalty of Rs. 10 lakhs upon the appellant herein for being concerned with illegal acquisition/possession/disposal of cellular phones and computer parts of foreign origin recovered from Maruti 1000 car bearing registration No. DLI-ICE-7139, on 19.10.1996 at Adhyatmik Nagar Police Check Post in Ghaziabad, UP. There were two occupants in the car at the time of interception, one Shri Ramesh Ghosh and the other Shri Sheesh Pal. The car was rummaged at the office complex of Revenue Intelligence Directorate at Lodhi Road, resulting in recovery of the above mentioned contraband goods which were secreted in the car in two specially made secret cavities in the floor of the car, beneath the two front seats of the car. The investigation revealed that Ajay Mohpal and Sudhir Mittal were engaged in smuggling of these items from Nepal into India, that they had carried out smuggling of these items in the past also, that in the present case, Sudhir Mittal had informed Ajay Mohpal on 18.10.1996 that the vehicle containing the smuggled goods would reach him some time on 19.10.1996 morning along with Ramesh Ghosh and Sheesh Pal. From the statements of Sheesh Pal, it had transpired that Sudhir Mittal who had sent Sheesh Pal for working as a driver with Ajay Mohpal. The Department issued several summons to Sudhir Mittal, but he never appeared in response thereto. Sudhir Mittal did not file a reply to the show cause notice. The finding of the adjudicating authority on Sudhir Mittal’s liability to penal action is contained in para 50 of the impugned order which reads as under:
The case against Sh. Sudhir Mittal is not solely based upon the statement of Ajay Mohpal. Sheesh Pal in his statement inter alia has stated that he was sent to Ajay Mohpal for driver’s job by Sudhir Mittal and as per directions of Ajay Mohpal and Sudhir he left for Nepal on 15.10.1996 in car No. DL-1-ICE-7139. Enquiries conducted from the M/s. Bharati Telecom Ltd. revealed that Ajay Mohpal on his cellular phone No. 9810009571 has been frequently contacting the office as well as residence of Sudhir Mittal. All these circumstantial evidence points towards the involvement of Sudhir Mittal. Furthermore, Sudhir Mittal was summoned by the competent officers on 22.10.1996, 5.11.1996, 27.1.1996, 9.12.1996 and 4.3.1997. He was given all the opportunities to place his case before the enquiring authority but he never availed these opportunities to show his innocence. Instead of responding to summons his father had been writing to the concerned officer that Sudhir Mittal is out of station and is yet to return home. In case if Sudhir Mittal was innocent, as claimed by him during adjudication proceedings he should have appeared before the competent authority and should have clarified his position.
2. In the appeal memo, the appellant has stated that Ajay Mohpal’s statement was retracted; however, there is nothing on record to prove this. Ajay Mohpal has not also taken this plea that he has retracted his statement. There is no mention of the retraction in the impugned order and further Ajay Mohpal did not appear for personal hearing. Therefore, there is nothing to establish that Ajay Mohpal had resiled from his statement recorded under Section 108 of the Customs Act, 1962. The appellant has also urged that there is nothing in the statement of Sheesh Pal to implicate him; however, we find that Sheesh Pal has stated that he was sent to Ajay Mohpal for the driver’s job by Sudhir Mittal and it was as per the directions of Sudhir Mittal and Ajay Mohpal that he (Sheesh Pal) left for Nepal on 15.10.1996 in the Maruti 1000 car.
3. Since the evidence in the form of statements of Ajay Mohpal and Sheesh Pal clearly bring out the guilt of the appellant, we hold that the penalty imposed upon him requires to be sustained. However, having regard to the facts and circumstances of the case, we reduce the penalty to Rs. 5 lakhs.
4. In the result, the impugned order is upheld and the appeal rejected, subject to the above modification in the quantum of penalty.
Dictated in open court.