Customs, Excise and Gold Tribunal - MumbaiGulshanlal F. Bahel vs Commissioner Of Customs (P) on 20 May, 2005ORDER
 

S.S. Sekhon, Member (T)1. Appellant is aggrieved by the order of the Commissioner in having imposed a penalty of Rs. 5 lakhs underSection 112 (d)of the Customs Act 1962 in pursuance of show cause notice issued to the appellants amongst others after inquiries were made by the officer consequent to an intercept & seizure from one Shri. Kanchiraat Issudheen, Indian national on his arrival at Mumbai Airport from Dubai by Flt No. GF-050 on 7.5.93 of 60 bars of foreign origin gold totally weighing 6996 gms.1.2 The pax, inter alia in his Statements deposed that he was to wear a "Police Security Photo" given to him and walk out of the hall pretending to be staff on duty, & hand over the gold contained in the brief case to a person who will identity him from the photo pass displayed. Inquiries made with the Police Department revealed that the said photo pass recovered from the pax was not genuine.1.3 On 17.06.93, the statement of on Gade, was recorded. He admitted to be proprietor of a shop 'Bobby Beedi Shop' taken from the Air Port Authority on a monthly rent & that this shop was managed by Shri Gulshan Bahel ( the present appellant) & one Mr. Joy Thomas Verghese, was employed by him to bring beedi cigarettes from the market and that the name of Joy Varghese was recommended by him to the Police for issue of 'Photo pass & he did not note the full address of Joy who after working from 3/4 days did not attend the shop that the photo pass of Joy then has expired & was revalidated.1.4 As regards the present appellant (i.e ) has admitted that he worked as a Manager in the shop since March 1913 on a rely of Rs. 3000/-Gulshan ( the appellant herein) admitted that original Police verification request verification by police for four persons was applied by Gade and passes were issued by Special Broad (I) CID Bombay which were given to him by Gade for safe custody & as per the instruction of Shri Gade, attendance of Joy was marked by him.1.5 Commissioner in the impugned order has found-".............. ....Shri Gade was assisted to a great extend by his manager or rules sub lessee viz. Mr. Gulshan. F. Bahel. It was Mr Bahel who had actually exposed the fraud perpetuated by Mr Gade. He only admitted very openly that he had taken the shop after payment of a heavy premium from Mr Gade and the security pass were for fraudulently issued in fake name at the instance of Shri Gade only and he knew that four persons in whose name the passes were got issued were not actually working in hishop whereas the passes obtained in the name were handed over to the nominee of Mr Gade. All these clearly indicate that Mr. Behl is also a willing accomplice in the act of abetment of supply and so he also deserves to be penalized underSection 112 (a)of the Customs Act 1962.Hence a penalty of Rs. 5 lakhs was imposed.2.1 After hearing both sides & considering the issue, it is found-a) There is an admitted act & finding of giving assistance for the creation & issue of 'Police Photo pass' to use by fictitious persons who could not be traced. Such pass had been recovered & was to be used to carry out the smuggled gold out side the Customs enclosure by a pax using the same & posing to be on duty employee. Penalty underSection 112for abetment has been brought out by the adjudicator & there is no denial to the rule as brought out. Penalty is there to be upheld, not with standing the decisions relied upon by Ld Shri,. Yadav for this appellant.b) However, considering the plea that the Commissioner has himself found the role to be of assistance to Shri Gade, the penalty of Rs. 5 lakhs is very harsh & the same is required to be reduced. We would consider a penalty of Rs. fifty thousand to be enough to deter the appellant from further indulging in such activity.c) Appeal allowed partially in above terms.(Pronounced in Court on 20/05/05)