2021 (3) TMI 1111

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....Section 110 of the Customs Act, 1962.  On search of the appellant personally and his residential premises, nothing incriminating was recovered.  The gold recovered from the appellant was absolutely confiscated by the adjudicating authority under Section 111(d), (e), (j) & (l) of the Customs Act, 1962 along with packing material thereto under Section 119 of the Customs Act, 1962.  The Hyundai Santro bearing registration No. PB-02-AP-3575 was also ordered absolute confiscation under Section 115(2) of the Act.  A penalty of Rs. 1,00,000/- was imposed on the appellant under Section 112 of the Act, but the adjudicating authority refrained from imposing any penalty on Smt. Usha Devi (appellant No.2).  The appellant challenged the order of the adjudicating authority before the ld. Commissioner (Appeals), who rejected the appeal filed by the appellant No.1 i.e. Sh. Vijender Singh and imposed a penalty of Rs. 1,00,000/- on appellant No.2 i.e. Smt. Usha Devi.  Against the said order, both the appellants are before me. 3.1 The ld. Counsel for the appellants submits that in the case of Smt. Usha Devi in Appeal No. C/60043/2020, the adjudicating authority refrai....

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....55 of the Act vide letter dated 06.06.2016. Assumingly that the clarification given by the Department vide letter dated 29.09.2016 is correct, even than the proceedings initiated prior to issue of notice dated 06.06.2016 under Customs Act by the Department is itself barred by limitation. To support his contention, he relied on the decision of this Tribunal in the case of CC & CE vs. Rajiv Kumar Aggarwal - 2007-TIOL-1736-CESTAT-BANG. 3.5 He further submits that the whatsapp messages allegedly exchanged among Mobile No. 9815202128 and 9814409166 with Mobile No. 9815095357 of the appellant is a digital device. There is neither any expert opinion nor any forensic report thereto brought on record confirming whatsapp message remitted to/from Mobile No. 9815095357 nor call details from mobile company brought on record. Therefore, the appellate authority failed to appreciate that the appellant in reply to show cause notice has categorically stated that whatsapp conversation is manipulated in order-in-original.  Further, in appeal before the Commissioner (Appeals), the appellant has specifically mentioned that whatsapp text message prima-facie reveals it is an cropping and it has al....

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....ention of foreign or other marking on seized gold. Further, the inventory of goods certified by judicial magistrate 1st Class, Amritsar on 19.05.2017 also does not confirm 2 gold pieces weighing 394.57 gram were bearing any foreign market. -  The appellant was admittedly present at the place of incidence and perusal of panchnama reveals panchnama proceedings dt. 06.07.2015 was not carried out in the presence of the appellant. The appellant made specific remarks on the body of panchnama on 06.07.2015 and it reads as "I have just read no proceedings done in my presence and before me ".  -  There is nothing brought on record to prove that 394.57 grams of gold recovered was of foreign origin and was brought by Pax arrived by Air India flight No IX-192 on 06.07.2015 at  SGRDJI Airport. The appellant submitted that said gold belongs to his wife and was given by his father-in-law to his daughter (appellant's wife) who has expired on 04.11.2012. The statements dt. 15.07.2015, 17.07.2015 and 17.08.2015 of Usha Devi W/o appellant refers.    -  The ld. Appellate Authority incorrectly ordered confiscation of impugned goods unde....

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....SC).  In this regard, he relied on the following case laws: (i) Asst. Coll. of C.E., Rajamudry vs. Duncan Agro Ind. Ltd. - 2000 (120) ELT 280 (SC) (ii)  Naresh J Sukhwani vs. UOI - 1996 (83) ELT 258 (SC) (iii)  Ramesh Chandra Mehta vs. State of West Bengal - AIR- 1970-SC (iv)  Satnam Singh vs. Asst. Commr. of Customs - 2012 (275) ELT 0535 (P&H) 4.4 He further submits that as smuggled gold is notified goods in terms of Section 123 of the Customs Act, 1962, therefore, burden of proof lays on the appellant. In this regard, he relied on the following case laws: (i)  Indru Ramchand Bharvani vs. UOI - 1992 (59) ELT 201 (SC) (ii)  CC, Cochin vs. Om Prakash Khatri - 2019 (366) ELT 402 (Kerala) (iii)  CC, Kolkata vs. Sudhir Saha - 2004 (172) ELT 26 (Calcutta) (iv)  Girindra Bijoy Sahu vs. CC, West Bengal - 2001 (137) ELT  619 (Tri. Kolkata)  (v) A.S.A. Kabir vs. CC, Madras - 1997 (89) ELT 595 (Tribunal) 5.  Heard the parties and considered the submissions. 6.  Appeal No. C/60043/2020 - This appeal is against the imposition of penalty of Rs. 1,....

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....or clearance of the gold, but for the gold in question which is recovered from the car parked in Airport parking, it has been categorically stated that the 400 grams of gold seized on 06.07.2015 from Sh. Vijender Singh's vehicle did not belong to them. The same has been recorded in para 8.2 of the show cause notice which is reproduced here as under: (viii) Further on being asked about the 400 gms of gold seized on 06.07.2015 from Vijender Singh's vehicle, he started that this seized gold did not belong to them. 9.  On going through the statement of Sh. Vijender Singh, the appellant, the statement given on the date of incident at the time of recovery of the impugned gold, the statement was recorded under Section 108 of the Customs Act, 1962 which is exculpatory.  Further, the statement of Smt. Usha Devi, wife of the appellant was also recorded under Section 108 of the Customs Act, 1962 who claims to be the owner of the gold in question. In support of her statement, she has produced various corroborative evidences, but all these were discarded by the Revenue without giving in credence to them which is not correct. Further, the statements of the persons recorded ....

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.... in question. As the appellant has able to prove the source of acquisition of the gold in question, the same cannot be confiscated.  Furthermore, the car is also not liable to confiscation; therefore, I set aside the impugned order qua absolute confiscation of the gold and the car in question and imposing penalty on the appellant. 12.  In these terms, the appeal is allowed with consequential relief. (Order pronounced in the court on 25.03.2021) ============= Document 1 RUD-7 STATEMENT OF SH. VIJENDER SINGH, SUPERINTENDENT OF CUSTOMS, SGRDJI AIRPORT, AMRITSAR TENDERED UNDER SECTION 108 OF CUSTOMS ACT, 1962 ON 06.07.2015 Today on 06.07.2015, response to your summons dated 06.07.2015 I am appearing before you to tender my statement. The provisions of Section-108 of Customs Act, 1962 have been explained to me and I know that I have to make a true and correct statement and that this statement of mine can he used against me or any other person /firm / company as an evidence in any court of law or departmental proceedings: My true and correct statement as follows: Q.1 Today, on 06.07.2015, Customs have recovered Gold from your vehicle No.....

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....08 Please state the name and other details of the supplier / seller of the aforesaid seized gold. The date of purchase/ acquisit on of gold may also be stated? Ans. Regarding this my wife may be able to explain this. Why the gold seized from your vehicle was wrapped with black masking tape and carbon paper? 109 Typed lay n Betne me L 06.07.2015 12- 617/15 CJ.P. Singh) Supch 06/17/15 Document 3 Ans I have no idea about this and my wife would be able to explain this. Q10 As per Panchnama dated 06.07.2015, the seized gold is having foreign marking and indicate that the sanie was smuggled into India. Please explain how did the gold has these markings, if the same was purchased by your wife from local market ? Ans Q.11 I have no idea about this and my wife would be able to explain this. You are hereby being shown the statement dated 06.07.2015 of Sh Ravi son of Sh Bhattu, houseboy, employee code ASR-212 of Aroon Aviation Services Pvt Ltd., New Delhi-37 who is deployed at SGRDII Airport wherein he has stated that you have landed him over one Samsung DUOS grey black mobile today forcibly at 1530 hrs for keepin....

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....न संभाझा धु Bite और धारा -1 108 क सब दिये गये है। मुझे ज्ञान के X मुझे बिल्कुल सही और सच्चा बयान देना मेरा यह, ब्यान एक सबूत के तौर पर मेरे तथा किसी अन्य व्यक्क्ति / कर्म/कम्मी खिलाफ किसी भी अदालतीय तथा विभाग के कारवाई में इस्तेमाल किया ....

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....े दो भाई है। उनका अपना कारोबार 1 एक भाई दिल्ली एक गांव म रहता है मेरे पाले कस्टम विभाग में अधीक्षक पयापर कार्यरत है और अमृतास र हवाई अडडे पर पोस्टलैंड है। मैं बयान करती है कि दिनांक 06-07-2015 पति- ध्यान दिया वह बिल्कुल ने जो ब्यान है। यह ....

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.... और आत्मा ने कहा इस तरह बोला मेरो आत्मा भाई की मदद भी हो जायेगी और मन का बोझ भी हल्का है। जहंगा मो हल्का है। जाएगा नही मैं पिता मैं पिता जी सुसर का दिया ok हुआ सान देहूँ और सब सच-सच बता दूँ लगभग जी पिचले चले 25-26 दिनों से मेरे गम्भà....

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....रीद कर ज्याक्वर गाड़ी मैं ही चलाती हूँ कभी मेरे पति की द‌फतर लेकर चले जाते मेरा यह ब्यान बिल्कुल सच है पो थ बिना किसी, डर, भय, दबाव व लालच के वे रही है पेज नं. २. पर मैने लिखा कि मैं एक ह पृथ्वी के साथ - 2 2 गृहणी हु मैं अपना कुछ प्राईवेट कà....