2018 (5) TMI 1625 - AT - Customs

Tribunal allows gold redemption, sets aside penalties due to lack of evidence.

The Tribunal partially allowed the appeal, permitting redemption of confiscated gold upon payment of duty and a fine for one appellant. Penalties imposed ... Smuggling - Foreign origin Gold - Town Seizure - Confiscation - Penalty - the whole case of revenue is based on the retracted statement (s) of appellant S.A. Khan and father of the other appellant Shri Mridul Agarwal. Held that: - Gold is not a prohibited item and can be imported upon payment of duty. Further, it is a case of town seizer and the customs officers have seized the Gold on the suspicion of smuggling, without there being any actual evidence of smuggling - these persons are not examined in the adjudication proceedings and as such their statements are not admissible, as evidence under the provisions of Section 138B of Customs Act. Penalties - Held that: - the appellants namely Shri Mridul Agarwal and Shri Satish Kumar have categorically denied their connection with the seized Gold and in absence of any corroborative evidence the imposition of penalty on them is bad and fit to be set aside - penalty imposed on Shri S.A. Khan, as smuggling is not established. Absolute confiscation - Held that: - as the appellant Shri S.A. Khan have not discharged the burden of proof under Section 123 of the Act (the presumption of gold being smuggled), the confiscation is upheld but the absolute confiscation is set aside by the learned Commissioner. Appeal allowed in part. Issues Involved:1. Confiscation of gold under Section 111 of Customs Act, 1962.2. Imposition of penalty under Section 112 of Customs Act, 1962.3. Admissibility of retracted statements under Section 138B of Customs Act, 1962.4. Burden of proof under Section 123 of Customs Act, 1962.5. Redemption of confiscated goods.Detailed Analysis:1. Confiscation of Gold under Section 111 of Customs Act, 1962:The Customs (Preventive) Officers intercepted the appellant carrying gold suspected to be smuggled from Nepal. The gold was seized under Section 110 of the Customs Act, 1962, on the belief that it was illegally imported, contravening Section 111 of the Customs Act and relevant notifications. The adjudicating authority confirmed the confiscation under Section 111(b) & (d) of the Customs Act, 1962.2. Imposition of Penalty under Section 112 of Customs Act, 1962:Penalties were imposed on Mr. Shakil Ahmad Khan, Mridul Agarwal, and Satish Kumar under Section 112 of the Customs Act, 1962. The adjudicating authority relied on the initial statements of the appellant, which were later retracted. The penalties were challenged on the grounds that the statements were not corroborated by independent evidence, and the appellants denied involvement in smuggling activities.3. Admissibility of Retracted Statements under Section 138B of Customs Act, 1962:The Tribunal noted that the case was based on retracted statements, which were not admissible as evidence under Section 138B of the Customs Act, as the persons making the statements were not examined during adjudication proceedings. Therefore, the statements could not be relied upon to establish the case against the appellants.4. Burden of Proof under Section 123 of Customs Act, 1962:The appellant, Mr. Shakil Ahmad Khan, failed to discharge the burden of proof under Section 123 of the Customs Act, which requires the person from whose possession the goods were seized to prove that they are not smuggled goods. The Tribunal upheld the confiscation of the gold due to the appellant's failure to meet this burden.5. Redemption of Confiscated Goods:The Tribunal set aside the absolute confiscation ordered by the Commissioner and allowed the confiscated gold to be redeemable to Mr. Shakil Ahmad Khan on payment of duty and a redemption fine of Rs. 5,00,000/-. The penalties imposed on Mridul Agarwal and Satish Kumar were set aside due to the lack of corroborative evidence linking them to the seized gold.Conclusion:The Tribunal allowed the appeal of Mr. Shakil Ahmad Khan in part, permitting the redemption of the confiscated gold on payment of duty and a fine. The appeals of Mridul Agarwal and Satish Kumar were allowed, setting aside the penalties imposed on them. The judgment emphasized the inadmissibility of retracted statements without proper examination and the necessity of independent evidence to corroborate allegations of smuggling.