M.P. Bohra, Member (J)

1. Heard Shri K. Chatterjee, Ld. Consultant for the appellant and Shri J.R. Madiam, ld. JDR for the Revenue.

2. This appeal has been filed against the order of the Commissioner (Appeals) passed on 21st November, 2003.

3. Brief facts of the case are that on secret information, the officers of DRI, Patna, intercepted a person, namely, Shri Krishna Prasad at Patna Railway Station premises. Search of his person resulted in recovery of one piece of gold biscuit of foreign origin having inscription "10 Tolas 999 NEW GUINEA". The Government Registered Valuer was called in and he certified that the said gold biscuit was of foreign origin weighting 16.664 gms valued at Rs. 52,000/-. In the statement written on 9th November, 2000, Shri Krishna Prasad disclosed that the recovered gold biscuit was purchased by him from the appellant. However, he failed to produce any document pertaining to acquisition/possession/transportation of the recovered gold biscuit. He further sated that he was an artisan and used to sell ornaments. On knowing that pur gold was being sold at Enamel Mart, Patna, he came from Arrah for purchase of primary gold. He further stated that the appellant had given him the said gold biscuit of 10 Tolas for Rs. 52,000/-. For follow of action, search was conducted at the business premises of M/s. Patna Enamel Mart but nothing incriminating could be recovered. The appellant was summoned but he did not appear, instead submitted an Affidavit wherein he denied any involvement in the impugned. The Joint Commissioner of Customs, Patna, imposed a penalty of Rs. 10,000/- on the appellant on the basis of confessional statement of Shri Krishan Prasad. The appellant, Shri Narayan Das preferred an appeal before the Commissioner (Appeals) of Customs, Patna, who rejected the appeal.

Hence the present appeal.

4. Shri Chatterjee for the appellant submits that there is no iota of evidence against the appellant except the statement of Krishan Prasad; the penalty cannot be imposed on the sole testimony of the co-accused without any independent corroboration. He relied on the following decision :

(1) Punam Chand Botra v. CC : : 1993 (63) ELT 237 (Tri -Kol.);

(2) Ram Lal Kataria and Anr. v. CCE, Patna : : 1991 (53) ELT 33 (Tri -Kol.);

(3) Chandra Sekhar, New Delhi - 1982 ELT 82 (C.B.E.C., New Delhi);

(4) J. Singh v. CC, New Delhi : : 1996 (83) ELT 175 (TBL), NRB, New Delhi;

(5) Hari Charan Kurmi v. State of Bihar (Evidence Act, 1872); : AIR 1964 SC 1184 (Full Bench : Five Judges);

(6) Prodhan Singh v. CC, Chandigarh : : 1983 (12) ELT 650 (CEGAT-NRB, New Delhi);

(7) Harron Haji Adullah v. State of Maharastra : ECR-C, Cus- 568 (SC) = : AIR 1968 SC 832 .

5. In reply, Shri J.R. Madhiam submits that the inculpatory statement of the co-accused can be the basis for conviction and such statement of co-accused can be used without any corroborative evidence. He relies on the decisions rendered in Naresh J. Sukhawani v. Union of India reported in : 1996 (83) ELT 258 (SC) and O.E.N. (India) Ltd., Cochin v. Collector of Customs & Central Excise, Cochin reported in : 1984 (15) ELT 137 (Tribunal).

6. In the present case, the only evidence against the appellant is of Mr. Krishna Prasad who disclosed in this statement that he purchased the gold biscuit from the appellant. There is no other evidence to connect the appellant with the smuggling activities or sale of gold biscuit. The premises of the appellant was searched but no incriminating document or other thing was recovered. The only evidence against the appellant is of Krishan Prasad in which he implicated the appellant. The judgements relied upon by the Ld. JDR relate to a case where other corroborative evidence was also available. In the case of Naresh J. Sukhawani v. Union of India, the facts are different. In Para 3 of the said judgment, it is mentioned as under :

"3. The Joint Secretary to the Government, the revisional authority, has held that the evidence and the statement given by Mr. Dudani Incriminates the petitioner. This was established with reference to the photographs and other intrinsic material. On the basis, he concluded that Mr. Dudani incriminated himself and the appellant in passing off foreign currency out of India, i.e. to Hong Kong."

It is clear from the above that the other incriminating material was also available on record. But in the present case, there is no other supporting evidence or corroborative evidence or any incriminating document against the appellant. The only inculpatory statement of co-accused cannot be the basis for penalty. Accordingly, the penalty is not sustainable on the sole ground of statement of co-accused in the absence of any other corroborative independent evidence. In view of the above discussion, appeal deserves to be allowed.

7. Consequently, I allow the appeal with consequential relief to the appellant. Stay petition also gets disposed of.