TaxTMI 
TaxTMI 
2025 (8) TMI 342
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.... Mal Jewellers, situated at 29A, Sir Hariram Goenka Street Kolkata (owner) and that he was working for him. Owner is his uncle. • gold is being smuggled into Kolkata in huge quantity from many foreign countries through Bangladesh and in order to conceal the identity the serial number engraved thereon is removed by scratching. • he had on several occasion in the past also carried gold from Kolkata and delivered the same to the persons in Kanpur as directed by the owner. • he never carried any bill/ invoice for the goods being carried by him for delivery in Kanpur. • he also was not in possession of any documents with regards to the purchase/ importation of the said gold being carried by him. 2.3 On the basis of the recovery of the gold from the appellant and his statement admitting carriage of the smuggled gold, appellant had committed an offence punishable under Section 135 of the Customs Act,1962. He was arrested on 23.02.2018 and produced before the Special CJM (Economic Offences) on same day. CJM remanded the appellant to judicial custody. 2.4 Searches were conducted at the premises of the owner, from where he was operati....
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....the gold ornaments manufactured from the gold bars brought from Bangladesh by way of smuggling should not be confiscated under Section 119 of the Customs Act, 1962. (iii) A penalty should not be imposed upon Shri Prithvi Raj Tosawar under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars. (iv) A penalty should not be imposed upon Shri Ritesh Soni under Section 112 (b) of the Customs Act, 1962 for his involvement in the smuggling of foreign origin gold bars. 2.10 The show cause notice was adjudicated as per order in original dated 06.09.2019 holding as follows: ORDER (i) I order absolute confiscation of the seized 08 pcs foreign origin gold bars and 200 pcs of gold bangles manufactured out of the smuggled foreign origin gold bars, total weighing 11233.370 grams, valued at Rs.3,44,63,006/- (Three Crores Forty Four Lakhs Sixty Three Thousands and Six only), under Section 111(b) & (d) of the Customs Act, 1962; (ii) I order confiscation of two cloth belts (kamarband), especially designed for concealment of the gold bars and one trolley bag used for concealment of the gold ornaments ma....
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....ellant -2: ........... 5. Personal hearing in the case was held on 14/17.7.2020. Shri Debaditya Banerjee, Advocate, attended the hearing on 14.7.20202 on behalf of Appellant -1. Whereas Shri Arjit Chakrabarti, Advocate attended hearing on 17.7.2020 on behalf of Appellant-2. Therir submissions are summarized as under: Appellant -1 (i) Condonation of delay in filing the appeal. (ii) Reduction in quantum of penalty. Appellant -2 ........ 6. I have gone through the case record. Nobody has claimed the ownership of the confiscated gold. Both the appellants have challenged the penalty imposed on them under section 112 of the said Act. 7. The impugned gold was recovered from Appellant-1 and he could not prove proper importation of the same. Under section 123 of the said Act, the burden to prove lawful importation of the impugned gold was on him. Therefore, imposition of penalty under section 112 of the said Act is sustainable. In the facts and circumstances of the case, particularly the value of the impugned gold which is about three and a half crore rupees, the quantum of penalty is also justified 8.....
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....find that "gold" is covered u/s 123 of the customs act, 1962. Therefore, keeping the provisions of section 123 of the Act in mind, taking cognizance of the facts contained in the Panchnama & Seizure Memo, both dated 23.02.2018 read with the confession made by the Noticee No. 2 in his statement dated 23.02.2018 recorded u/s 108 of the Customs Act,1962, I find that the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- has been smuggled into India from Bangladesh in contravention to the provisions of 7(1)(c), 11, and 46 of Customs Act,1962 read with Rule 3 of the foreign trade (development & regulation) Act,1992 and Rule 11 & 12 of the foreign trade (Regulation) rules,1993. Therefore, the recovered and seized impugned f/o gold weighing 11233.370 gm valued @ Rs.3,44,63,006/- is liable to confiscation under section 111(b) & 111(d) of the Customs act,1962. Since, there is no claimant of the said gold, no consideration under section 125 of the Customs Act, 1962 is required to be discussed. Thus, the said impugned gold confiscation under section 111(b) & 111(d) of the Customs act, 1962. is liable to absolute In view of above findings, two cloth....
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....ery of the said gold. Later, he reiterated it in his statement dated 23.02.2018 recorded u/s 108 of the Customs Act, 1962. I find it pertinent to mention that the Noticee No.2 has never retracted his submission till date. Name of the Noticee no.1 has figured at very first moment of the case when element of surprise of the operation leading to interception of the Noticee no.2 left no scope for any kind of manipulation & disclosure at this juncture by the Noticee no.2 ought to be admitted as truth, subject to corroborative circumstantial evidences found in the investigation followed. The details of both the shops of jewellaries, & existence of the named person i.e. Prithvi Raj Tosawar involved in the business of gold have been found correct. Disclosure of mobile no. 8017634160 was also found correct to the extent that the said mobile no. 8017634160 had ample conversations, time and again, with the mobile no.9874228622 of the Noticee no. 2. The Noticee No. 1 contests this on pretext of absence of details of the subscriber. In this regard, I find that it is not necessary that a man uses only a mobile no. subscribed to him and if anyone is indulged in any kind of unscrupulous activities....
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....recorded under duress or by force. He was suitably represented before the Commissioner (Appeal) in by the counsel, wherein also no such averment was made. In my view if Appellant had any such grievance he could have stated the same before the CJM before whom he was produced, Jailor, District Jail Varanasi while in judicial custody or before the Commissioner (Appeal). The averment made by the appellant to this effect in this appeal before the tribunal and at the time of hearing of appeal, is nothing but an afterthought and needs to be rejected. Thus the submission made by the appellant that his statement that 23.02.2018 was not voluntary lacks merit. 4.5 In case of K I Pavunny [1997 (90) E.L.T. 241 (S.C.)] following has been held: "19. Next question for consideration is : whether such statement can form the sole basis for conviction? It is seen that, admittedly, the appellant made his statement in his own hand-writing giving wealth of details running into five typed pages. Some of the details which found place in the statement were specially within his knowledge, viz., concealment of the 200 biscuits in his earlier rented house till he constructed the present house and s....
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....luenced by threat, duress or inducement etc. Therefore, it is a voluntary statement given by the appellant and is a true one. 20. The question then is : whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by s....
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..... If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant Kashmira Singh of the charge of murder. The appellant was acquitted of an offence under Section 302 IPC but was convicted for the offence under Section 201 IPC for destroying the evidence of murder and sentenced him to seven years rigorous imprisonment. This decision was considered by a four-Judge Bench in Balbir Singh v. State of Punjab - AIR 1957 SC 216 wherein it was held that if there is independent evidence, besides the confession, the rule that the confession could be used only to corroborate the other evidences loses its efficacy. Therefore, it was held that if the retracted confession is believed to be voluntary and true, it may form the basis of a conviction but the rule of practice and prudence requires that it should be corroborated by independent evidence. Therein also, for the charg....
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....f two-Judges considered and held that if the evidence of an investigating officer is found to be reliable, whether it can be used to corroborate the evidence depends on the facts of each case. In that case, relating to the offence under Foreign Exchange Regulation Act, it was held that the evidence of the investigating officer and other evidence could be used to corroborate the recoveries made of the Indian currency being exported. This Court upheld the conviction of the accused. 24. In Nishi Kant Jha v. The State of Bihar - 1969 (1) SCC 347, another Constitution Bench was to consider whether, when a part of the confessional statement is inculpatory and the other part exculpatory, the former point was admissible in evidence. It was held that the exculpatory part was inherently improbable and was contradicted by other evidence and was, therefore, unacceptable. The incriminating circumstances contained in the inculpatory part of the statement were accepted to confirm the conviction of the capital offence. The law laid down by a three-Judge Bench in Chandrakant Chimanlal Desai's case is not inconsistent with the above exposition of law. 25. It would thus be seen that....
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....retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the cou....
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....in civil suits, the trial Court and the appellate Court should marshal the facts and reach conclusion, on facts. In a criminal case, the prosecution has to prove the guilt beyond doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt of a doubting Thomas or of a weak mind is not the road to reach the result. If a Judge on objective evaluation of evidence and after applying relevant tests reaches a finding that the prosecution has not proved its case beyond reasonable doubt, then the accused is entitled to the benefit of doubt for acquittal. The question then is : whether the learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not every fanciful reason that erupted from flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but....
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....f imprisonment prescribed for the purpose. The offences are proved from the evidence." 4.6 The factum of recovery of the illicitly imported/ smuggled gold of foreign origin from the possession of the appellant is not in dispute. No claimant has come forward to claim the ownership of the gold valued at more than Rs 3 crore. Appellant was not only carrying the gold but was also aware of it smuggled nature as is evident from his statement and details revealed by them in his statement recorded on 23.02.2018. The details revealed were corroborated by the presence of the shops and persons owning such shop for whom he was carrying this gold. The corroboration of the facts stated by the appellant in his statement are sufficient enough to adduce his knowledge about the smuggled nature of the gold which has been held liable for confiscation under Section 111 (b) and (d) of the Customs Act, 1962. 4.7 Appellant was duly represented before the Commissioner (Appeal) and his counsel has at the time of personal hearing pleaded only for the reduction of penalty. Hence I do not find any merits in the submissions made to the effect that he was not afforded opportunity to defend himself by ....