1991 (5) TMI 183 - AT - Customs

Appeal dismissed, penalty overturned, goods confiscated, firm's penalty upheld.

SAILENDRA NATH SETH Versus COLLECTOR OF CUSTOMS (PREVENTIVE)

The appeal was dismissed with the modification that the penalty of Rs. 2,500 imposed on the appellant was set aside. The confiscation of the goods and ... Confiscation Issues Involved:1. Confiscation of goods under Section 111(d) and 111(p) of the Customs Act, 1962.2. Confiscation of Indian currency under Section 121 of the Customs Act.3. Imposition of penalty under Section 112(a) and (b) of the Customs Act.4. Applicability of Section 123 of the Customs Act regarding the burden of proof.5. Validity of the appellant's confessional statement under Section 108 of the Customs Act.6. Separate penalties on the sole proprietor and the proprietary firm.Detailed Analysis:1. Confiscation of Goods under Section 111(d) and 111(p) of the Customs Act, 1962:The appellate tribunal confirmed the confiscation of wrist watch movements and watches seized from the appellant's residential and shop premises. Under Section 123 of the Customs Act, the burden of proving that the seized goods were not smuggled lies with the appellant. The appellant failed to produce any legal documents to support the lawful acquisition of these goods. The tribunal noted that the appellant's explanation that he purchased the goods from unknown brokers without bills did not discharge the burden of proof. Consequently, the confiscation of the goods was upheld as per the law.2. Confiscation of Indian Currency under Section 121 of the Customs Act:The tribunal examined whether the confiscation of Rs. 10,000 from the residential premises and Rs. 15,000 from the shop premises was justified. The appellant's confessional statement indicated that the seized currency was the sale proceeds of wrist watches fitted with Swiss movements bought from brokers without bills. The tribunal held that the statement, though retracted belatedly, was voluntary and admissible. The tribunal distinguished this case from previous cases cited by the appellant, noting that the appellant's statement and the seizure of foreign watch movements corroborated the conclusion that the currency represented the sale proceeds of smuggled goods. Thus, the confiscation of the Indian currency was confirmed.3. Imposition of Penalty under Section 112(a) and (b) of the Customs Act:The tribunal upheld the imposition of a penalty on the appellant under Section 112(a) and (b) of the Customs Act. The appellant's failure to prove the lawful possession of the seized goods and currency justified the penalty. The tribunal noted that the appellant's statement and the circumstances of the case supported the imposition of the penalty.4. Applicability of Section 123 of the Customs Act Regarding the Burden of Proof:The tribunal emphasized that under Section 123 of the Customs Act, the burden of proving that the seized goods were not smuggled lies with the appellant. The appellant's inability to produce legal documents or valid explanations for the possession of the goods meant that the burden was not discharged. Consequently, the confiscation of the goods was in accordance with the law.5. Validity of the Appellant's Confessional Statement under Section 108 of the Customs Act:The tribunal held that the appellant's confessional statement given on the date of seizure was voluntary and admissible. The statement indicated that the seized currency was the sale proceeds of wrist watches fitted with Swiss movements bought from brokers without bills. The tribunal noted that the belated retraction of the statement was an afterthought and did not affect its admissibility. The tribunal relied on legal precedents to support the admissibility of the statement and its use as evidence of the appellant's guilt.6. Separate Penalties on the Sole Proprietor and the Proprietary Firm:The tribunal addressed the issue of imposing separate penalties on the appellant and his proprietary firm. The tribunal noted that the firm had already been penalized to the extent of Rs. 2,500 and that the appellant, being the sole proprietor, should not be penalized separately for the same offence. The tribunal set aside the penalty imposed on the appellant, giving him the benefit of doubt, but upheld the penalty on the firm.Conclusion:The appeal was dismissed with the modification that the penalty of Rs. 2,500 imposed on the appellant was set aside. The confiscation of the goods and Indian currency, as well as the penalty on the proprietary firm, were confirmed as per the law.