2023 (6) TMI 1162 - AT - Customs

Tribunal confirms gold confiscation due to lack of evidence, reduces penalties based on roles

Shri Jochan Michael Versus Commissioner of Customs (Preventive), Shillong And Shri Antony Philip Versus Commissioner of Customs (Preventive), Shillong

The Tribunal upheld the confiscation of gold biscuits and wallets, citing lack of evidence of legal purchase within India and confirmation of foreign ... Absolute Confiscation - gold biscuits - wallets - Owner of biscuits - Corroboration of statements or not - levy of penalty - HELD THAT:- There is no dispute that the gold biscuits were seized from the Appellants when they were being screened at Imphal Airport. If the Appellants have bought the gold through licit channel, they would have carried the Invoice copy towards the same, particularly taking into account that the value of gold was for Rs.15.7 Lakhs. While they were not in a position to show any document for purchasing these gold biscuits in India, in the Recorded statement, the Appellants have stated that they have travelled to Myanmar and bought the biscuits by way of cash payment. The recorded statements have not been retracted by them at any stage. The Test Report issue by Assam Hallmarking Centre dated 15 March 2019 also states that the golds were of 24 Carat with fineness of 998.4 to 998.5 purity. If all these facts are viewed together, it is clear that the gold biscuits are of foreign origin only. In the absence of any plausible evidence brought in by the Appellant to the contrary, it gets established that the gold biscuits were of foreign origin and the Department was correct in absolutely confiscating the gold. Admittedly the Recorded statements did not specify that the same were being recorded in terms of Section 108 of Customs Act, 1962. However, the Appellants are required to support their claim by way of proper Invoices in the first place. They were not in a position to prove the same. Therefore, even the error pointed out about the Recorded Statement cannot come to the rescue of the Appellants. Confiscation of gold biscuits and wallets are upheld - Considering the value of gold biscuits, penalty imposed on Shri Antony Philip is reduced to 1,00,000/- - Considering the fact that both the Appellants have admitted that the owner of the gold biscuits is Shri Antony Philip and taking the view that Shri Jochan Michael has acted as a carrier, the Penalty on him stands reduced to 25,000/-. Issues involved: Seizure and confiscation of gold biscuits, adherence to proper procedures, voluntary statements under pressure, foreign origin of gold, validity of test report, penalties imposed.Seizure and Confiscation of Gold Biscuits:- Two gold biscuits found on one person and one gold biscuit found on another person during screening at Imphal Air Port.- Panchnama drawn by Customs Officials for the seized biscuits in the presence of witnesses.- Voluntary statements recorded from both individuals regarding ownership and purchase of the gold biscuits.- Gold biscuits sent for testing to Assam Hallmarking Centre, which confirmed foreign origin with 24 Carat purity.- Lower Authorities confiscated the gold and imposed penalties on the individuals. Adherence to Proper Procedures:- Appellant argues that proper procedures were not followed in seizure and confiscation of gold biscuits.- Appellant claims that their statements were given under pressure and not voluntarily as required under Section 108 of Customs Act, 1962.- Appellant contends that the entire proceedings are flawed due to the faulty approach adopted by the Department.Foreign Origin of Gold:- Appellants were apprehended at Imphal Airport without evidence of licit purchase within India.- Appellants stated in voluntary statements that they traveled to Myanmar and bought the gold there with cash payment.- Test report from Assam Hallmarking Centre confirmed the foreign origin of the gold biscuits.- Department justifies confiscation based on lack of evidence of legal purchase within India and foreign origin of gold.Validity of Test Report and Penalties Imposed:- Test report confirmed the gold biscuits were of foreign origin with high purity.- Despite errors in recording statements under Section 108, lack of evidence of legal purchase within India supports the confiscation.- Confiscation of gold biscuits and wallets upheld, with reduced penalties imposed on the individuals based on their roles and admissions.Conclusion:The Tribunal upheld the confiscation of the gold biscuits and wallets, citing lack of evidence of legal purchase within India and confirmation of foreign origin through the test report. Penalties imposed were reduced based on the individuals' roles and admissions. Despite procedural errors in recording statements, the Department's actions were deemed justified due to the overall circumstances surrounding the case.