2012 (9) TMI 642 - AT - Customs

Tribunal Upholds Gold Confiscation, Reduces Penalties

BABULAL S. JAIN Versus COMMISSIONER OF CUSTOMS (P), MUMBAI

BABULAL S. JAIN Versus COMMISSIONER OF CUSTOMS (P), MUMBAI - 2012 (278) E.L.T. 635 (Tri. - Mumbai) Issues Involved:1. Confiscation of gold bars.2. Confiscation of Indian currency.3. Confiscation of a scooter.4. Imposition of penalties.5. Validity of the baggage receipt.6. Validity of statements recorded under duress.7. Incomplete investigation.8. Application of judicial precedents.Issue-wise Detailed Analysis:1. Confiscation of Gold Bars:The appellants argued that the gold bars were licitly imported by an NRI passenger, supported by a baggage receipt. However, the Tribunal noted that there was no evidence showing the seized gold bars were covered by the baggage receipt. The appellants failed to mention the baggage receipt at the time of initial statements and only produced it later, suggesting an afterthought. The Tribunal upheld the absolute confiscation of the gold bars under Section 111(d) of the Customs Act, 1962, as the appellants could not discharge the burden of proof under Section 123 of the Customs Act.2. Confiscation of Indian Currency:The Tribunal found that the Indian currency seized was the sale proceeds of smuggled gold biscuits, corroborated by the statements of the involved parties. Thus, the confiscation of Rs. 8.5 lakhs under Section 121 of the Customs Act, 1962, was upheld.3. Confiscation of Scooter:The Tribunal did not specifically address the confiscation of the scooter in the detailed analysis, but it was included in the Commissioner's order under Section 115(2) of the Customs Act, 1962.4. Imposition of Penalties:The Tribunal considered the penalties imposed on Shri Ramdas Satpute and Shri Babulal Jain to be on the higher side, given the absolute confiscation of the gold and currency. The penalties were reduced from Rs. 2.5 lakhs to Rs. 1 lakh for Shri Satpute and from Rs. 5 lakhs to Rs. 2 lakhs for Shri Jain.5. Validity of the Baggage Receipt:The Tribunal found no credible evidence linking the baggage receipt to the seized gold bars. The receipt was produced after a delay and did not match the initial statements, leading to the conclusion that it was an afterthought to escape legal consequences.6. Validity of Statements Recorded Under Duress:The appellants claimed their statements were taken under duress and retracted them. However, the Tribunal noted the retraction was delayed and considered it an afterthought. The initial statements were corroborated by other evidence, making the retraction unreliable.7. Incomplete Investigation:The appellants argued that the investigation was incomplete as no statement was recorded from Shri T.K. Manoharan. The Tribunal found that the burden of proof was on the appellants to show the licit procurement of the gold, which they failed to do.8. Application of Judicial Precedents:The Tribunal considered the judicial precedents cited by both parties. It held that the facts of the present case were different from those in the cited judgments. The Tribunal upheld the Commissioner's decision based on the specific circumstances and evidence of this case.Conclusion:The Tribunal upheld the absolute confiscation of the gold bars and Indian currency, reduced the penalties on the appellants, and dismissed the appeals. The judgment emphasized the appellants' failure to provide credible evidence linking the seized gold to the baggage receipt and upheld the findings of smuggling based on the corroborated statements and circumstances.