TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 942
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.... DRI reached the premises of at House No. 10-3-14, Jagadeesh Villa, East Marredpally, Near Shenoy Hospital, Secunderabad on 21.11.2019 at around 5.15 P.M. and found 40 gold pieces of 100 grams each bearing "AL ETIHAD DUBAI - UAE 100G 999.0" with logo as "GE" packed in a transparent polythene cover of 1kg pack and cash of Rs. 5,01,500/- (Five Lakhs one Thousand and Five Hundred only) kept in a car in which Shri V. Praneeth Kumar, nephew of the appellant Shri V. Anil Kumar and two other persons were sitted. On enquiry, it was revealed by Shri V. Praneeth Kumar that the said gold was given to them by the appellant Shri Swapnil Madhukar Mane and appellant Shri Akash K Ingole, who came in Maruti Ertiga Car bearing Registration No. KA04MP4692 and took cash which was concealed in a clandestine compartment beneath the hand brake. They informed that they did not have any documents pertaining to the said gold bars or any cash receipt for the amount received from Shri V. Praneeth Kumar. The Officers, along with a lady Officer and the Panchas, then entered the house of the appellant Shri V. Anil Kumar located in the said premises and search the same. But nothing incriminating was found. During....
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.... was investigated by the Officers of DRI, who recorded the statements of the persons concerned as deemed fit and show cause notices were issued to those who were considered to be concerned with the matter including the involvement of the persons who were stated to have supplied the gold and who claimed to have supplied the gold without interrogating them. Even the Adjudicating Authority did not considered the submissions made by Shri Avadhuth Patil, who actually supplied the gold. The persons Shri Swapnil Madhukar Mane & Shri Akash K Ingole, who claimed to have supplied the gold in their retraction of the statement to the Investigation Officer, just after they released on bail, later the person who carried the gold retracted from his initial statement and stated that one Shri Avadhuth Patil of Keral had supplied the gold and provided all the details of the supplier by sending letters to the investigating team. The investigating team though made a mention about this in the show cause notice, neither investigation was conducted with Shri Avadhut Patil nor a notice was given to him. 4. Learned Counsel for the appellants also urged that seizure was improper and without following the p....
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....ed on the initial statement of the appellant and not considered the retracted statement which is against the law. 6. Learned Counsel for the appellants also submits that the Lower Authorities while confiscating the gold had ordered for absolute confiscation without giving the option to redeem the goods on payment of fine. In the present case, the seizure is town seizure, gold is transported from Calicut to Hyderabad. The importer is not known or address or even presumed that the gold is imported which is against the law since the gold cannot be held as prohibited goods. The person who was stated to have purchased 10 biscuits of 100 gms was unidentified and the value of currency seized is not tallying with worked out value of 50 biscuits being 5000 gms. Therefore, the currency is not the sale proceeds of smuggled gold and not liable to confiscation. So, it is required to be given back on payment of fine. 7. Learned Counsel for the appellants also submits that the seizure of gold and currency are not proper and legal so ordering confiscation of the same is against the law. The import of gold by the appellants was not established on the above grounds, so he prayed to allow the appea....
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....ri-Kol)]. The seized cash is the sale proceeds of smuggled gold found in possession of the appellant Shri Swapnil Madhukar Mane and the appellant Shri V. Anil Kumar are liable to be confiscated under Section 121 of the Customs Act 1962. The vehicle used for transportation of smuggled gold in concealed compartment and also used to hide the sale proceeds. Hence, vehicle is liable for confiscation under Section 115(2) of the Customs Act, 1962. Since, seized gold are smuggled gold, therefore, onus to prove is otherwise on appellant Shri V. Anil Kumar according to Section 123 of the Customs Act, 1962. He failed to produce any documents/invoices regarding purchase of seized gold. Department relied on D.Srinivas [2002 (148) ELT 946 (Tri-Bang)] affirmed by Karnataka High Court; Subhash Jain [2016 (333) ELT 51 (Del)]. Smuggled gold is prohibited goods, hence liable to be confiscated. Department relied on Kerala High Court judgment in the case of Om Prakash Khatri [2019 (366) ELT 402 (Ker)] which was affirmed by the Hon'ble Supreme Court. 9. Heard Learned Counsel for the appellant and Learned AR for the Department at length and perused the records. 10. Learned Counsel for the appellants su....
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....], in which it was held that "if the circumstances of seizure reasonably justify the belief in the mind of the seizing officer that goods are smuggled goods, the court is not to sit in appeal over his decision of seizing such goods". The Authority has to see whether there are grounds which may prima facie justify the said reasonable belief. Learned AR also relied on the Hon'ble Supreme Court decision in the case of State of Gujarat Vs Shri Mohanlal Jitamalji Porwal and Another [1987 (3) TMI 111 (SC)], in which it was held that the circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstance. Seized gold are in 40 pieces and every piece of 100 gms with each bearing "AL ETIHAD DUBAI - UAE 100G 999.0" with logo as "GE" and no any documents/invoices at the time of seizure. In these circumstances, the proper Officer has reason to belief that the gold are smuggled as required under Section 110 of the Customs Act 1962. Therefore, as discussed above, Customs Officers had sufficient reason to believe that the seized gold is smuggled gold and was lia....
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.... as directed by Sachin the foreign marked gold will be handed over to certain persons and he would collect cash for the same; regarding the instant case, on the directions of Sachin he along with Akash collected gold from an unknown person in Kamat Market of Calicut; from Calicut they reached Hyderabad and have handed over 5 kgs of gold to Praneeth Kumar who is the nephew of V. Anil Kumar and was given Rs. 1,94,96,200/-; the cash received was concealed in the specially made cavity of the car; the specially made cavity in the car was used for concealing gold and cash and it can be opened by using secret press button beneath the driver's seat; he further stated that he has not given any receipt / invoice for the gold to V. Anil Kumar as it was smuggled gold; he does not know how Praveen disposed of 1 Kg of gold given by him. 15.02. Akash K Ingole stated that he was working as driver of N.H.Rajendra; the vehicle belonging to Rajendra was registered in his name; he also works for Sachin who is the son-in-law of Rajendra; on instructions of Sachin he travels to Calicut with cash arranged by Sachin concealed in the special cavity in the car; he along with Swapnil collects foreign marke....
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....licut; he has not dealt with any smuggled gold nor purchased or delivered any smuggled gold to any of his customers at any point of time; he knew Swapnil; he disagreed with the statement given by Swapnil; he has not been involved in any kind of smuggling and does not know any person by name V. Anil Kumar; he disagreed with the statement of Akash; the gold bars seized by DRI, Hyderabad under panchanama dt. 21/22.11.2019 does not belong to him; he disagrees with the statement given by V. Anil Kumar and he has no business relation with V. Anil Kumar. 16. Appellants Shri Swapnil Madhukar Mane and Shri Akash K Ingole, later on retracted by their statements vide their letter no. NIL-3/20 and appellant Shri V. Anil Kumar retracted his statement vide letter dated 21.03.2020. Learned Counsel for the appellants submits that the Adjudicating Authority relied on K. Rahuman Sait Vs Commissioner of Customs, Trichy [2021 (376) ELT 476 (Mad)] and observed that retraction beyond 3 months cannot be accepted. The Adjudicating Authority had failed to compute 3 months since these persons were in jail and retracted just after releasing from the jail. 17. Learned AR for the Department states that retra....
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....ew that reason given by Lower Authorities in this regard is based on proper appreciation of fact and evidence. Therefore, no any interference is required in this regard. 18. Learned Counsel for the appellant also submits that Shri Avadhuth Patil, who was stated to have supplied the gold and who claimed to have supplied the gold was neither considered during adjudication proceedings nor at the appellate stage. Learned AR for the Department submits that Lower Authorities have gone through contentions and discussed in detail. Learned Adjudicating Authority, have taken the plea of Shri Avadhut Patil in detail, specially in para no. 46 to 46.3 in his order. Learned Commissioner (Appeals) also discussed in his order at para no. 10. Here, it is also important that Shri Avadhut Patil had sent a letter on 16.02.2021 first time after 14 months of the seizure. Steps taken by Shri Avadhut Patil totally unnatural. If any seizure occurred against any persons goods especially in huge quantity of the gold no one can wait till 14 months for response and claiming ownership. Thus, assertion of Shri Avadhut Patil is not cogent and reliable. Hence, Lower Authorities findings are based on facts and cir....
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....otice for seizure of currency was given to the appellant Shri V. Anil Kumar, who is not a person from whom the currency was recovered. Thus, the notice given to the appellant Shri V. Anil Kumar, for proposing confiscation of currency is illegal and without support of any authority of law. Show cause notice for confiscation of the currency was require to given to the appellant Shri Swapnil Madhukar Mane, from whose possession the currency was recovered and seized. Therefore, confiscating the currency (sale proceeds) is liable to be set aside and returned to the appellant Shri Swapnil Madhukar Mane. Whereas, Learned AR has submitted that show cause notices were issued for confiscation of gold and currency to Shri V. Anil Kumar on the basis of statements dated 22.11.2019 under Section 108 of the Customs Act, 1962 and no any illegality to issue show cause notice to the appellant Shri V. Anil Kumar for confiscation of gold as well as sale proceeds as he claimed to be the owner. 22. Sale proceeds (currency) is goods as defined by Section 2(22) of the Customs Act as thus: Section 2(22) in The Customs Act, 1962 (22) "goods" includes- (a) vessels, aircrafts and vehicles; (b) stores....
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....istration No. KA04MP4692) which are the sale proceeds of the said smuggled gold and seized vide Panchanama dated 21/22.11.2019 drawn at H.No. 10-3-14, Jagadeesh Villas, East Marredpally, Secunderabad, should not be confiscated under Section 121 of the Customs Act, 1962: In the show cause notice total recovery of Rs. 1,99,97,700/- in which Rs. 5,01,500/- from Shri V. Praneeth Kumar and Rs. 1,94,96,200/- from Shri Swapnil Madhukar Mane. Show cause notice issued relating both recovery of cash to Shri V. Anil Kumar, whereas after purchase of gold, Shri V. Anil Kumar cannot be considered as owner of sale proceeds (currency) of Rs. 1,94,96,200/- as transaction of sale and purchase was complied and sale price was already handed over in lieu of said gold to Shri Swapnil Madhukar Mane . 25. The appellant Shri Swapnil Madhukar Mane in his statement under Section 108 of the Customs Act, 1962 stated that on the direction of the appellant Shri Sachin Vilas Kadam, he along with the appellant Shri Akash K Ingole collected gold from the unknown person in Kamat Market, Calicut, Kolkata and handed over 5 kgs of gold to Shri V. Praneeth kumar who is nephew of the appellant Shri V. Anil Kumar and wa....
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....adam in their statement under Section 108 of the Customs Act, 1962 denied their involvement in the matter. No any other corroborative evidence except statement of the appellant Shri V. Anil Kumar, Shri Swapnil Madhukar Mane and Shri Akash K Ingole against them. 29. Learned Counsel for the appellants relied on Co-ordinate Bench of Allahabad decision in the case of Commissioner of Customs, Lucknow Vs Sanjay Soni [2022 (381) ELT 509 (Tri-All)] in which it was held that penalty is not imposable only on the basis of incriminating statement made by one of co-accused in absence of any other corroborative evidence which is based on Hon'ble Supreme Court decision in the case of Vinod Solanki Vs Union of India [2009 (233) ELT 157 (SC)], wherein, it was held that on the sole statement of co-accused, another co-accused, cannot be convicted or fastened with penalty etc. There has to be corroborative evidence in addition to the statement of a co-accused. In the instant case, no any corroborative evidence other than statement of the appellant Shri V. Anil Kumar, Shri Swapnil Madhukar Mane and Shri Akash K Ingole against the appellants Shri N H Rajendra and Shri Sachin Vilas Kadam. In these facts....