K. Gopal Hegde, Member (J)

1. The appeal 1427/83 arises out of order-in-original bearing No. 54/Collr./1983, dated 6-10-1983 passed by the Collector of Customs, Ahmedabad.

The appeal No. 110/83 arises out of and is directed against the order-in-original bearing No. 6/Gold/1983 dated 6-10-1983 passed by the Collector of Central Excise/Customs, Ahmedabad.

2. The appellant in both the appeals is one and the same person. The respondent is also the same. Both the appeals involve identical facts and both the impugned orders are identically worded excepting that in the appeal 1427/83 the Collector had held the appellant guilty and is liable for penalty under the provisions of Section 112 of the Customs Act and in the appeal GC 110/83 the Collector of Customs had held that the appellant is guilty and is liable for penalty under Section 74 of the Gold (Control) Act. Hence we have clubbed both these appeals and heard together and hence this common order.

3. The subject of challenge in both the appeals is the imposition of penalty of Rs. one lakh under the Customs Act and imposition of penalty of Rs. one lakh under the Gold (Control) Act.

4. The material facts required for the disposal of these appeals lie in a small compass. On specific intelligence that one Shri Gopal Geharimal Mehta (to be hereinafter referred to as 'Gopal') was transporting foreign marked as well as indigenous gold from Udaipur to Ahmedabad in his Fiat Car bearing No. GTI6020, the officers of the Customs Division of Ahmedabad kept a watch during the early hours of 13-12-1977 on the Ahmedabad Himmatnagar Highway and on the approach of the car, they intercepted the same near Noroda Railway Crossing. They found Gopal and four others in the car. After preliminary questioning the car alongwith the occupants were taken to the' Assistant Collector of Customs at Paldi, Ahmedabad for a detailed search and examination. In the presence of the panchas, the personal search of the five persons was carried out. The search resulted in the recovery of two cotton waste belt tied to the waist of one of the persons by name Chandwani. The belts were found to contain foreign marked 27 lagdies each weighing ten tolas and also 18 pieces of gold bearing foreign marking and weighing 3.039.980 kgs. valued at Rs. 1,94,400/- primary gold of indigenous variety. Indian currency of Rs. 6,284/- were also recovered from a rexin hand bag found inside the car. In the statement recorded under Section 108 Sevaram stated that the seized gold belonged to Gopal and at his instance he was carrying the gold from Udaipur to Ahmedabad and for this work he was to receive a remuneration of Rs. 100/- per trip.

5. In his statement dated 13-12-1977 and 14-12-1977 recorded under Section 108 of the Customs Act, Gopal inter alia stated that the cash of Rs. 6,284/- found in the rexin handbag were given to him by one Shri Kundenlal Nahar of Udaipur for getting them exchanged for new currency notes from a dealer in old notes in Manekchowk, Ahmedabad. He further stated that the foreign marked gold carried on the person of Sevaram belonged to a person named Prem residing at the Jogiwala Mandir, Wakane , Ghantagher, Chandni Chowk, Delhi and also gave the telephone number of Prem bearing No. 269979. He further stated that he came in contact with Shri Prem about 6-7 months prior to this incident and had discussion with him regarding dealing in smuggled gold. Prem had subsequently came to Udaipur and after ascertaining his (Gopal G. Mehta's) reputation and started delivering gold to him. As per the understanding, he used to visit the appointed place at Delhi Gate in Udaipur with a view to ascertaining Prem's arrival at Udaipur. He further stated that on Prem's instruction he used to visit ' Delhi to bring foreign marked gold and dispose of the same to S/Shri Punamchand Laxmanji Marwadi and Narendra Vadilal Soni alias Bhagubhai of Ahmedabad. He also stated that the primary gold used to be in two different brands, namely, 'Trishul