Tribunal Confirms Confiscation of Gold & Jeep, Reduces Penalties, Overturns Shoe Confiscation

GOPI BHAI VAGHJIBHAI DESAI Versus COMMISSIONER OF CUSTOMS, JAIPUR

GOPI BHAI VAGHJIBHAI DESAI Versus COMMISSIONER OF CUSTOMS, JAIPUR - 2004 (178) E.L.T. 1021 (Tri. - Del.) Issues Involved:
1. Confiscation of 30 foreign marked gold biscuits, jeep, shoes, socks, and cellophane tapes.
2. Imposition of penalties under Section 112(a) of the Customs Act.
3. Validity of the seizure and the reasonable belief of smuggling.
4. Burden of proof under Section 123 of the Customs Act.
5. Credibility of documentary and oral evidence, including retracted statements and affidavits.

Detailed Analysis:

1. Confiscation of 30 Foreign Marked Gold Biscuits, Jeep, Shoes, Socks, and Cellophane Tapes:
The Customs officers intercepted a jeep and seized 30 foreign marked gold biscuits from its occupants, Varda Ram and Vaja Ram, who were unable to produce any documents for the gold. The gold, jeep, shoes, socks, and cellophane tapes were confiscated as per the Commissioner's order.

2. Imposition of Penalties under Section 112(a) of the Customs Act:
Penalties were imposed on all appellants under Section 112(a) of the Customs Act. The Commissioner imposed a penalty of Rs. 2 lakhs on Shri Gopibhai and other penalties on Shri Mala Ram, Varda Ram, and Vaja Ram.

3. Validity of the Seizure and the Reasonable Belief of Smuggling:
The seizure was based on specific information received by the Customs officers. The occupants of the jeep admitted in their statements that they were carrying the gold for delivery without any documents, which led to the reasonable belief that the gold was smuggled. The Tribunal upheld this belief and the subsequent seizure.

4. Burden of Proof under Section 123 of the Customs Act:
The Tribunal held that the burden of proving that the gold was not smuggled lay with the appellants. The appellants failed to discharge this burden adequately. The Tribunal noted inconsistencies and lack of corroborative evidence in the appellants' claims, such as the alleged transaction with Mohd. Hanif Sheikh and the purported destruction of documents by Customs officers.

5. Credibility of Documentary and Oral Evidence, Including Retracted Statements and Affidavits:
The Tribunal examined the credibility of the evidence presented:
- The statements of Varda Ram and Vaja Ram, though retracted, were initially consistent with the seizure report.
- The affidavit of Mohd. Hanif Sheikh was found lacking in specific details and corroborative evidence.
- The Tribunal preferred documentary evidence over oral statements, especially when the latter were inconsistent or retracted under alleged coercion.

Conclusion:
The Tribunal upheld the confiscation of the 30 gold biscuits and the jeep, confirming the penalties on Shri Gopibhai and Shri Mala Ram but reducing the latter's penalty to Rs. 50,000. Penalties on Varda Ram and Vaja Ram were set aside due to insufficient evidence of their involvement in smuggling. The confiscation of shoes and socks was also vacated.