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2023 (4) TMI 174
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....tional Commissioner of Customs (Preventive), Custom House, Kolkata which was confirmed by the Commissioner (Appeals) vide Order-in-Appeal No.KOL/CUS(PORT)/AKR/880-885/2021 dated 31.12.2021. The adjudicating authority vide order No: 35/ADC(P)/CUS/WB/20-21 dated 16.09.2020 (i) absolutely confiscated 11 pcs gold bars collectively weighing 10500.80 grams, valued at Rs.3,15,02,400/-; 9 pcs gold coins collectively value at Rs. 2,07,000/- and 509.100 grams of silver granules, valued at Rs. 19,448/ u/s 111(b) & 111(d) of the Customs Act, 1962 (ii) absolutely confiscated the seized Indian currency amounting to Rs.1,59,76,5000/- u/s 121 of the Customs Act,1962 (iii) penalty of 70,00,000/- on the Noticee No. 1 and penalty of Rs. 10,00,000/- each upon the Noticee No. 2 and 3 U/s 112(a) & 112(b) of the Customs Act, 1962. 3. Noticee No.1 is the main appellant and Noticee No.2 and Noticee No.3 are employees of Noticee No. 1. The Noticee No.2 and Noticee No.3 works as office assistance who are neither related with the seized goods nor they have any knowledge regarding the procurement of origin of the goods seized by the department. 4. The facts of the case, in short are that the DRI officers con....
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....ar Jalan alias Pappu Noticee No.5 and Sri Amit Kumar Jalan, Noticee No.6 were also examined in connection with a separate case of seizure of 8 Kgs gold effected by DRI, Kolkata in the month of June, 2019. Their statements were recorded on 10.6-2019 & 11.6.2019. The said persons allegedly given statements to the effect that they have sold smuggled gold to the Noticee No. 1. The said persons thereafter retracted the statements. It is pertinent to mention herein that the Noticee No. 1 in any of his statement has ever admitted or said that the Noticee No. 1 has purchased any gold from the said persons. The Noticee No. 1 had never entered any into any business relation with the said persons. The department also has not been able to prove or even able to produce any evidence that the said persons have sold any gold to the Noticee No. 1. 9. A common show cause notice being DRI F.No: DRI/KZU/AS/Enq- 115(Int-34)/2018 dated 28-7-2019 was issued to the Noticee no.1 and also to Noticee no.2 and Noticee no.3, Abhishek Kumar Agarwal Noticee no.4, Ashok Kumar Jalan, Noticee no.5and Amit Kumar Jalan,Noticee no.6 which was adjudicated by the Additional Commissioner of Customs(Preventive) and an or....
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....in 2016 (337) E.L.T. 10 (Cal.) (ii) RAM NARESH CHAURASIYA Vs. COMMISSIONER OF CUSTOMS (PREV.), PATNA, paras 18 & 19 (iii) RAM NATH SAH Vs. COMMISSIONER OF CUSTOMS, PATNA 2007 (219) E.L.T. 546 (Tri) para 4 B. Currency seized from appellant not established to be representing the sale proceeds of smuggled goods. Confiscation of currency under Section 121 of Customs Act, 1962 not sustainable. It is stated herein that for upholding the seizure of Indian currency for violation of Section 121 the following ingredients must be satisfied (i) there must be a sale (ii) the sale must be of smuggled goods (iii) the sale must be by a person having knowledge or reason to believe that the goods were of smuggled origin (iv) the seller and purchaser and the quantity of gold must be established by the Customs authorities. The department in the instant case has failed to prove any of the ingredient in the instant case. In this context reliance is placed upon, inter alia, the following decisions:- (i) RAMCHANDRA Vs. COLLECTOR OF CUSTOMS 1992 (60) E.L.T. 277 (T) paras 5 & 6 (ii) COLLECTOR OF CUSTOMS, NEW DELHI Vs. SUDHIR ELECTRONICS 2000 (123) E.L.T. 1054 (T) para 17 C. Retracted statement an....
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....the said gold is notified items under Section 123 of the Customs Act, 1962. Therefore, the burden of poof that the same is not smuggled one, is upon the person from whom the gold is seized and Noticee has failed to discharge the said burden. He further submitted that the retraction of statement made by the Customs Officer is having evidentiary value. In support of his contention, he relies on the following case laws : (i) Phoenix Mills Ltd. Vs. Union of India : 2004 (168) ELT 310 (Bom.); (ii) Percy Rustomji Basta Vs. State of Maharashtra : 1983 ELT 1443 (SC) ; (iii) Vinod Solanki Vs. Union of India & Anr.- Civil appeal No.7407 of 2008 (Arising out of SLP (c) No.3537 of 2008) ; (iv) Kuber Tobacco Products Ltd. Vs. Commissioner of Central Excise, Delhi-2013 (290) ELT 545 (Tri.-Del.) ; (v) Naresh J.Sukhawani Vs. Union of India : 1996 (83) ELT 258 (S.C) (vi) Surjeet Singh Chhabra Vs. Union of India & Others : 1997 (89) ELT 646 (S.C.) ; (vii) Sunny Kakkar Vs. Principal Commissioner of Customs (Prev.), New Delhi, Customs Appeal No.52094 of 2018-CESTAT Principal Bench (viii) Ramesh Lakhabhai Patel & Naresh Savaliya Vs. Commissioner of Customs, Ahmedabad, Customs Appeal No.....
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....85, he could not produce any document in support of his statement. It has also been stated by him in para 2 of his affidavit, that again in the year 1993, he gifted 100 grams of gold bar on the occasion of birth of his granddaughter (Daughter's daughter). This gold was also purchased by him from Raxaul. 17. I find from the records that the Ld. Adjudicating Authority in his discussion and findings observed that the appellant was asked to submit legal documents of the recovered and detained primary gold weighing 199 gms and 100 gms each. Shri Yogendra Prasad Chaurasia, father of Shri Ram Naresh Chaurasia, has submitted that one piece of primary gold weighing 199 gm, was given to his elder daughter-in-law (wife of Shri Harish Chaurasiya) by her parents on occasion of her marriage. Another piece weighing 100 gm was given to his granddaughter again by her daughter-inlaw's parent, resident of Parsa, Nepal. The same facts was reiterated by Shri Ram Naresh Chaurasiya in his interrogatory statements dated 11-1-2016 and 25-5-2016. 18. I find that there is no dispute with the said two Gold Bars recovered from the residential premises owned by the appellant's father and the appellant and h....
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....ppellants." 20. We further take note of the fact that the Hon'ble High Court of Calcutta in the case of Nand Kishore Sumani Vs. Commissioner of Customs, Central Excise & Service Tax, Siliguri (supra), the Hon'ble High Court has observed as under : "7. It is true that as per the above provisions of Section 123 of the Customs Act, 1962 it is not required that gold should contain foreign markings and even gold in primary form or jewellary could also be covered as per the language of the provision. But whether onus of Indian origin on any primary gold or jewellery bearer is cast upon the person in possession of such gold. It may be appreciated that when the provisions of Section 123 of the Customs Act, 1962 were enacted the Gold Control Act was also in operation and gold was considered to be a very sensitive commodity. There was subsequent liberalisation in import policy with respect to gold and even foreign marked gold was allowed to be imported through baggage and through Banks on fulfilling certain conditions. On licit import these foreign marked gold bars can be freely bought and sold in India. However, if any person is found to carry a foreign marked gold in India without a bil....
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.... gold, cannot confirm whether the gold seized by the Customs Officers from that person, is the same gold or not. But the said statement made by M/s. Chauhan Zevares further confirms that the sixteen pieces of gold were, in any case, purchased by Shri Kapildeo Prasad from the said M/s. Chauhan Zevares Pvt. Ltd. 13. The Tribunal in the case of S.K. Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) E.L.T. 415 (Tri. - Mum.) observed as under : - "7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any register nor is there any requirement to issue invoices under any Central Act." 14. In the case of Sri Samir Kumar Roy & Others v. C.C. (Prev.) West Bengal, C....
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....non-observance of provisions of some other enactments like income-tax or sales tax laws but the same cannot be grounds for confiscation of goods under Section 111 of the Customs Act, 1962 when there is no iota of evidence that seized gold bars are of foreign origin or smuggled into India. Suspicion/presumption howsoever strong cannot take the place of an evidence. 8. In view of the above observations and the settled proposition of law, present appeals filed by the appellants are allowed by setting aside the order-in-original dated 6-2-2014 passed by the Adjudicating authority with consequential relief, if any." 21. In view of the above judgements, as the noticees have explained the source of procurement of gold, which is not denied by the Revenue, further having no mark on the gold and purity of gold is also not in conformity of the foreign gold, the benefit of doubt goes in favour of the notices. 22. We also take note of the fact that the statement recorded during the course of investigation was retracted by the Noticee No.(1)(2)(3), the same are not admissible in absence of any corroborative evidence as held by the following decisions : (i) Collector of Customs, New Delhi V....
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....der Section 108 of the Customs Act, 1962, inculpating himself as well as the petitioner can be used as a substantive evidence. Shri Roy has also invited my attention to the decision of the Honourable Tribunal in the case of Mohmedbhai Asrafbhai Kimsarwala v. Collector of Customs reported in 1991 (52) E.L.T. 573 (Tribunal), wherein it was held that the statement of an accomplice without corroboration would not be sufficient to prove the guilt, and when there is a knowledge of involvement, personal penalty can be imposed. It was also held that before acceptance of the statement of the accomplice, some corroboration from some independent source is called for. 5. After hearing both sides and on going through the Orderin- Original and the Order-in-Appeal, it is observed that the appellants were penalised solely on the statement of Shri Shiv Kumar Sharma, the driver. Except the statement of Shri Shiv Kumar Sharma, there is no other independent evidence to corroborate the statement of the coaccused. It is an accepted legal proposition which has been accepted by the Apex Court in various judgments that the statement of coaccused, when not corroborated by any independent evidence, cannot ....
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.... in various decisions cited supra by the Learned Counsel for the appellant has consistently held that for imposing the personal penalty under Section 114(i) of the Customs Act, 1962, there should be acceptable legal evidence on record about the acts of commission or omission by the appellant. Further in order to hold that the appellant has abetted in the commission of the offence, there has to be a knowledge on the part of the appellant regarding the illegal activities of the exporter whereas in the present case no corroborative evidence has come on record which pinpoint that the appellant had the knowledge of the illegal activities of the exporter company. In the case of Commissioner of Customs, Mumbai v. M. Vasi cited supra, the Tribunal has held that abetment presupposes knowledge of the proposed offence and in the absence of knowledge penalty under Section 112 on the charge of aiding or abetting would not sustain. Further in the case of Shree Renuka Sugars Ltd. v. CC, Mangalore cited supra, the Tribunal has held that on the basis of mere suspicion against CHA, penalty cannot be imposed. Further, I find that the decisions relied upon by the Learned DR are not applicable in the f....
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....r office. One can understand he may not remember the vehicle details but "mode of transport" is unbelievable. If I have to accept the submission of Ms. Mane that dehors the panchnama, in view of the confession recorded under Section 108, the Court can still convict the accused, then I ask myself why should they even take any panch witness and why should any one go through the trouble of recording of panchnama and producing the panch witness at the time of trial. Moreover, if I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the Customs authorities recorded the statement under Section 108, in which the accused has confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial Court having recorded any evidence or conducting a trial. 9. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For....
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....orroboration, and the answer is no." 12. In view of the above discussion, I hold that the Ld.Commissioner(Appeals) has rightly dropped the penalty against the Respondents as there is no corroborative evidence on record in support of the statement made before DRI Officers which were retracted on first available opportunity before the Ld.CMM and no cross-examination of any witness has been granted to the Respondents. Therefore I do not find any merits in the Appeals filed by the Revenue. Accordingly, the same are dismissed." 25. As in this case, the Noticee No.(5) & (6) have been implicated on a later stage when investigation was going on in some other cases and the Noticee Nos. (1), (2) & (3) never made any statement regarding procurement of impugned gold from the Noticee No.(5) & (6). Moreover, the admission made by Noticee No.(5) & (6) during course of investigation was retracted on the first available opportunity. In that circumstances, relying on the above cited decisions in the Noticee No.(5) & (6) itself, we hold that no penalty is imposable on Noticee No.(5) & (6). 26. In view of the above discussions, we conclude our findings as under : (a) As the Noticee No.(1), (2)....