2025 (7) TMI 496 - AT - Customs

CESTAT sets aside Rs. 78 lakh currency confiscation, upholds penalties under sections 112(a)(i) and 112(b)(ii) for undocumented gold possession.

CESTAT Kolkata set aside confiscation of Indian currency totaling Rs. 78,00,000 seized from appellants, ruling the Department failed to establish the ... Confiscation of Indian currency seized u/s 121 of the Customs Act, 1962 - imposition of penalties u/s 112(a)(i) and 112(b)(ii) of the Customs Act, 1962 - HELD THAT:- The Department has failed to adduce any single evidence to establish that there was any sale of gold, that too of smuggled gold, brought on earlier occasions, or that the Indian currency of Rs.30,00,000/- seized were the sale proceeds. It is also observed that in this case, that the buyer and the seller of the gold on earlier occasions were not identified. Under these circumstances, the order of confiscation of the said Indian currency passed by the ld. adjudicating authority is liable to be quashed and the same is required to be released in favour of the appellant - As there is no evidence available on record to establish that the said Indian currency were sale proceeds of smuggled gold, we hold that the Indian currency amounting to Rs.30,00,000/- is not liable for confiscation. Accordingly, the release of the said Indian currency to the appellant ordered. Seizure and confiscation of Rs.48,00,000/- seized from the appellant no. 2 - HELD THAT:- There is no consistency in the findings in the impugned order with respect to the source and usage of the Indian Currency. On the one hand it has been alleged that the said money pertains to sale proceeds of gold smuggled in on earlier occasions, but on the other hand it is claimed that the said money has been brought in for purchase of 2 kgs of gold from Shri Birendra Kumar Gupta. In this case, it is a fact that there is no evidence available on record to establish that the said cash recovered from appellant no. 2 was obtained by way of sale of any smuggled goods. Evidence to indicate that the cash recovered were sale proceeds of smuggled gold is a pre-requisite condition for invocation of Section 121 of the Customs Act, 1962. The intention to use such cash for purchase of the gold, which never happened, cannot be a reason for invocation of Section 121 and seize the Indian Currency. Hence, the said cash, in INR, amounting to Rs.48,00,000/- is not liable for confiscation under Section 121 ibid - the said Indian currency of Rs.48,00,000/- is not liable for confiscation and hence, the order for confiscation and order for release of the said Indian currency to the appellant set aside. Imposition of penalties on the appellant nos. 1 and 4 - HELD THAT:- It is found that gold bearing foreign marking has been seized from their possession. It is a fact that they were not having any valid documents for carrying the said gold legally. As per Section 123 of the Customs Act, 1962, the responsibility is cast on the person who is found to be in possession of such gold to provide evidence as to legal purchase of the gold. In this case, the appellant nos. 1 and 4 have failed to produce any documents for the legal purchase of the said gold. Hence, we find that the penalties have been rightly imposed on these appellants in the impugned order. Consequently, no case is being made out for our interference in this regard. The penalties imposed on the appellant nos. 1 and 4 under Sections 112(a)(i) and 112(b)(ii) of the Customs Act, 1962 are, therefore, upheld. Penalties imposed on the appellant nos. 2 and 3 - HELD THAT:- These appellants have not committed any offence in connection with the smuggling of the said gold. It is a fact that no gold has been seized from the appellant nos. 2 and 3 in this case. The Indian currency seized from these appellants has been claimed to be their trade capital and there is no evidence brought on record by the Revenue to establish that the said currency was the sale proceeds of gold smuggled into the country on earlier occasions. Therefore, the penalties imposed on the appellant nos. 2 and 3 are not sustainable and accordingly, we set aside the penalties imposed on them. Seizure of Indian currencies - HELD THAT:- There is no evidence available on record to establish that the said Indian currencies were the sale proceeds of smuggled gold and hence, it is found that the case-law relied upon by the Department in support of confiscation of the Indian currencies are not relevant to the facts of the present case. Confiscation of the seized vehicle i.e., “Maruti Alto” car - HELD THAT:- The said vehicle has been confiscated under Section 115(2) of the Customs Act, 1962, with an option for redemption of the same on payment of redemption fine of Rs.37,000/- in lieu of such confiscation, vide the impugned order. As there is no evidence regarding the usage of the said vehicle in relation to any smuggling activities, the confiscation of the said “Maruti Alto” car is not warranted. Accordingly, the confiscation of the said “Maruti Alto” car is set aside. Consequently, the imposition of redemption fine of Rs.37,000/- in lieu of such confiscation is also set aside. Appeal disposed off. The core legal questions considered by the Tribunal in these appeals arising under the Customs Act, 1962, include:(a) Whether the confiscation of Indian currency seized from the appellants under Section 121 of the Customs Act was justified, particularly in the absence of evidence establishing that such currency represented sale proceeds of smuggled goods;(b) Whether the penalties imposed under Sections 112(a)(i) and 112(b)(ii) of the Customs Act on the appellants were sustainable, having regard to the evidence of their involvement or knowledge of smuggling activities;(c) Whether the confiscation of the vehicle bearing Registration No. WB-74G-6012 under Section 115(2) of the Customs Act was warranted, considering the evidence of its use in smuggling activities;(d) The evidentiary value and admissibility of statements recorded during investigation, including issues relating to voluntariness and opportunity for cross-examination;(e) The legal standards and burden of proof required to establish confiscation and penalty under the Customs Act, especially concerning the link between seized currency and smuggled goods.Issue-wise Detailed Analysis:1. Confiscation of Indian Currency under Section 121 of the Customs ActLegal Framework and Precedents: Section 121 of the Customs Act empowers confiscation of currency if it is proved to be proceeds of smuggled goods. The Tribunal relied on precedents including Ram Chandra v. Collector of Customs and Pradeep Mahajan v. Commissioner of Customs, which emphasize the necessity to establish (i) a sale of smuggled goods, (ii) that the sale was by a person knowing or having reason to believe the goods were smuggled, (iii) identification of buyer and seller, and (iv) that the currency seized represented sale proceeds.Court's Interpretation and Reasoning: The Tribunal observed that in the present case, the Department failed to produce any evidence establishing that the Indian currency seized from appellant no. 1 (Rs.30,00,000) and appellant no. 2 (Rs.48,00,000) was proceeds of sale of smuggled gold. There was no proof of any prior smuggling transactions, no identification of buyers and sellers in such transactions, and no corroborative evidence linking the currency to illegal activities.Key Evidence and Findings: The appellants claimed the currency was either business capital or intended for purchase of gold, which was never completed. The Department's contradictory stance-alleging the currency as proceeds on one hand and as purchase money on the other-further weakened their case. The Tribunal noted absence of any documentary or testimonial evidence to substantiate the Department's claims.Application of Law to Facts: Applying the principles from cited precedents, the Tribunal held that mere possession of currency without proof of its illicit origin or connection to smuggled goods cannot justify confiscation. The essential ingredients under Section 121 were not met.Treatment of Competing Arguments: The Department's reliance on the appellants' statements and the presumption of habitual smuggling was rejected due to lack of supporting evidence. The appellants' contentions regarding absence of sale and lack of evidence of prior smuggling were accepted.Conclusion: The confiscation orders of Indian currency seized from appellants no. 1 and 2 were set aside, and the currency was ordered to be released.2. Imposition of Penalties under Sections 112(a)(i) and 112(b)(ii)Legal Framework and Precedents: Section 112 imposes penalties on persons who do acts or omissions rendering goods liable for confiscation or who deal with such goods knowing their confiscable nature. The Tribunal referred to the decision in Shri Gagan Karel v. Commissioner of Customs, which held that penalty can only be imposed if the person's role in the offence is clearly established.Court's Interpretation and Reasoning: The Tribunal found that appellants no. 1 and 4 were in possession of gold bars without valid documents proving legal procurement, thus rendering the goods liable for confiscation. Hence, penalties imposed on them were justified. Conversely, appellants no. 2 and 3 had no gold seized from their possession, no evidence was adduced to show their involvement or knowledge of smuggling, and the seized currency was not shown to be proceeds of smuggled goods. Therefore, penalties imposed on appellants no. 2 and 3 were unsustainable.Key Evidence and Findings: The appellants no. 2 and 3 provided statements denying involvement and produced bank statements and income tax returns. The Department failed to produce corroborative evidence implicating them. The Tribunal also noted the absence of opportunity for cross-examination of co-accused statements, which further undermined the prosecution's case.Application of Law to Facts: The Tribunal applied the legal principle that penalty under Section 112 requires proof of an act or omission rendering goods liable to confiscation or dealing with such goods with knowledge. Mere intention to purchase smuggled goods, without actual receipt or dealing, does not attract penalty.Treatment of Competing Arguments: The Department's argument of habitual smuggling and reliance on co-accused statements was rejected due to lack of evidence and procedural irregularities, including denial of cross-examination.Conclusion: Penalties on appellants no. 1 and 4 were upheld; penalties on appellants no. 2 and 3 were set aside.3. Confiscation of Vehicle under Section 115(2) of the Customs ActLegal Framework and Precedents: Section 115(2) allows confiscation of conveyances used in smuggling activities. However, such confiscation requires evidence that the vehicle was used for illegal transportation or concealment of smuggled goods.Court's Interpretation and Reasoning: The Tribunal found no evidence that the Maruti Alto car bearing Registration No. WB-74G-6012 was used in smuggling activities. The vehicle was found in possession of appellant no. 2, but no gold or incriminating material was recovered from or in connection with the vehicle.Key Evidence and Findings: The Department failed to establish any nexus between the vehicle and smuggling. The vehicle was confiscated with an option for redemption fine, but the Tribunal held the confiscation unjustified.Application of Law to Facts: Without evidence of use in smuggling, confiscation under Section 115(2) cannot be sustained.Treatment of Competing Arguments: The Department's assertion of habitual smuggling and involvement of the vehicle was rejected for want of evidence.Conclusion: The confiscation of the Maruti Alto car and the redemption fine imposed were set aside.4. Admissibility and Weight of Statements Recorded During InvestigationLegal Framework and Precedents: Statements recorded during investigation must be voluntary and the accused must be given opportunity for cross-examination. Reliance solely on such statements without corroborative evidence is not sustainable.Court's Interpretation and Reasoning: The Tribunal noted discrepancies and procedural irregularities in recording statements, including backdating and lack of signatures by jail authorities. The denial of cross-examination on these statements was held to vitiate the proceedings.Key Evidence and Findings: The statements dated 13.01.2016 and 31.01.2016 were interrogatory in nature, with no proper attestation. The appellants challenged their voluntariness and authenticity.Application of Law to Facts: The Tribunal held that statements without proper procedural safeguards and without corroboration cannot form sole basis for penalty or confiscation.Treatment of Competing Arguments: The Department's reliance on these statements was rejected due to procedural infirmities and absence of corroborative evidence.Conclusion: Statements were not given decisive weight in the absence of corroboration and procedural compliance.Significant Holdings:'The Department has failed to adduce any single evidence to establish that there was any sale of gold, that too of smuggled gold, brought on earlier occasions, or that the Indian currency of Rs.30,00,000/- seized were the sale proceeds. It is also observed that in this case, that the buyer and the seller of the gold on earlier occasions were not identified.''Penalty can be imposed under Section 112 only when a person commits an act which renders the goods liable for confiscation or deals with such goods knowing their confiscable nature. Mere intention to buy cannot be considered as dealing with the goods.''Confiscation of the vehicle under Section 115(2) is not warranted in absence of evidence regarding its use in smuggling activities.''Statements recorded without proper procedural safeguards and without opportunity for cross-examination cannot be sole basis for imposing penalty or confiscation.'The Tribunal's final determinations were:(1) The confiscation of Indian currency of Rs.30,00,000/- from appellant no. 1 and Rs.48,00,000/- from appellant no. 2 under Section 121 is set aside, and the currency is ordered to be released.(2) Penalties imposed on appellant nos. 1 and 4 under Sections 112(a)(i) and 112(b)(ii) are upheld.(3) Penalties imposed on appellant nos. 2 and 3 under Sections 112(a)(i) and 112(b)(ii) are set aside.(4) Confiscation of the Maruti Alto car bearing Registration No. WB-74G-6012 and the redemption fine imposed are set aside.