Archana Wadhwa, Member (J)

1. After hearing the learned Advocate appearing in support of the captioned Miscellaneous Application for condonation of delay of seventy-two days in filing the appeal, on the ground that during the relevant period, the applicant/appellant was suffering from jaundice and malaria for which a medical certificate and prescriptions of the doctor have been placed on record, I condone the delay and allow the Miscellaneous Application.

2. After dispensing with the condition of pre-deposit of penalty of Rs. 1.00 lakh (Rupees one lakh) imposed upon the applicant/appellant, I take up the appeal itself with the consent of both sides.

3. As per facts on record, the Customs Officers intercepted one Ma-ruti Van which was found to be loaded with five packages of ball bearings totally valued at Rs. 3,05,650.00 (Rupees three lakhs five thousand six hundred and fifty). The said Maruti Van belonged to one Miss. Manpreet Walia who used to give the said Car on hire to the Travel Agency. The driver of the Car, Md. Nasim Khan in his statement deposed that he was a driver of M/s. R.K. Travels engaged in the business of hiring out of cars. The said car under the instructions of M/s. R.K. Travels was reported to M/s. Warsi Travels owned by the appellant herein. The appellant, SK. Anisur Rahaman in turn gave him the Car Duty Slip and directed him to carry the five gunny wrapped packages to Poddar Court. A person named Mustaque also accompanied him in the car, but fled away from the scene when he was intercepted by the D.R.L Officers.

4. During the course of investigation, the appellant was summoned to appear before the DRI Officers, but he failed to appear.

5. On the above basis, a show cause notice was issued to various persons including the appellant herein proposing confiscation of the ball bearings as also the Maruti Van in question along with imposition of personal penalty upon various persons. The said show cause notice culminated into an impugned Order vide which the ball bearings and the Van in question were confiscated and a penalty of Rs. 1.00 lakh (Rupees one lakh), inter alia, was imposed upon the appellant herein. The appellant is aggrieved only with the imposition of personal penalty of Rs. 1.00 lakh (Rupees one lakh).

6. I have heard Shri H.P. Jaiswas, Advocate, for the appellant and Shri T.K. Kar, learned S.D.R., for the Revenue.

7. The penalty has been imposed upon the appellant on the sole statement of the driver of the Maruti Van which is to the effect that the goods in question were put in the Van on the insistence of the appellant herein. The appellant submits that the car was engaged by him under the Car Duty Slip No. 373, but subsequently was released at 5.15 P.M. and thereafter, the same was not used. The Car Duty Slip No. 374 produced by the driver was forged and fabricated and the same was never produced at any time during the investigation. Learned Advocate also submits that the appellant did not appear in response to the summons inasmuch as the said summonses were not received by him. He also submits that non-appearance before the D.R.I. Officers by itself, is not a ground for holding that the appellant is guilty. He also submits that there is nothing on record to show that the goods in question belonged to the appellant and the car in question was under his duty.

8. I find force in the above submissions of the appellant and the appellant has admitted that the car was attached with the Travel Agency, M/s. Warsi Travels on hire at 11.15 A.M. on 11-1-1999. The said Car was used till 5.15 P.M. Thereafter, the same was released. It has also been contended that the Car Duty Slip bearing No. 374 is forged and fabricated. Therefore, I find that the entire case against the appellant herein is based upon the statement of the driver, which is in the nature of uncorroborated statement of a co-accused and cannot be made the sole basis for penalising the appellant herein. There is no other evidence on record to show the appellants involvement in transportation of ball bearings in question.

9. Accordingly, I extend the benefit of doubt to the appellant and set aside the personal penalty of Rs. 1.00 lakh (Rupees one lakh) imposed upon the appellant. The appeal is allowed in above terms. Miscellaneous Application and Stay Petition also get disposed of.