2000 (1) TMI 101

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.... 25 gold bars as also the Indian currency of Rs. 4,25,000/- holding that the said currency represented sales proceeds of the smuggled gold bars. Penalty of Rs. 1,00,000/- has been imposed on the present appellants as also Rs. 5000/- each on S/Shri Prakash Babu and V. Swaminathan and Rs. 10,000/- on one Shri Satyavan Patel. Except for the present appellant, no other appeal was filed before us in this connection. 2.Heard Shri M. Ajmer Ali, ld. Advocate for the appellants and Shri S. Sudarshan, ld. DR. 3.Ld. Advocate submits that firstly the appellants do not claim the gold confiscated. Secondly, he submits that the appellants had retracted the statements both when he was produced before the Magistrate who examined his bail application a....

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....senting sales proceeds of smuggled goods. He further submits that apart from the retracted statements as well as the deposition to the contrary in the personal hearing, there is no other evidence to show that the Indian currency has any nexus with the gold seized. He, therefore, prays that the Indian currency be released to the appellants. With respect to the penalty of Rs.1,00,000/-imposed on the appellants, he submits that since there is no corroborative or direct evidence against him, the penalty also needs to be set aside. 4.On a query from the bench, ld. Advocate informs that criminal proceedings before the Hon'ble Magistrate's Court has since been completed leading to the imposition of "nominal" penalty on the appellants by the Hon....

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....timate details by the statement of Shri Swaminathan and Shri Prdkash Babu from whose possession the gold was seized. We also note that during the personal hearing, the deposition of these two carriers was to the effect that the gold was handed over by one Mustafa. However, no detailed description of Mustafa or his address was on record. Therefore, this retraction from the statement during the personal hearing is to be regarded as an after-thought. We further find that if the two carriers namely Shri Prakash Babu and Shri Swaminathan had wished to effectively ratract from the corroborative statement, they would also have contested the Order-in-Original impugned appealed before us as penalty were also imposed on them. However, we note that as....

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....s premises of the appellants wherein he was dealing with trading, inter alia, in cashew, etc., no contraband was seized from his business premises; (b)        While the value of gold confiscated is Rs. 9,78,401/- the currency seized is only Rs. 4,25,000/- and the department's investigation has not shown as to what happened to the rest of the amount, if the said currency represented the sale proceeds of the smuggled goods. (c)        We also note that the statement of the appellants as well as the two carriers are not inculpatory as far as the said currency is concerned. (d)   In the case of Ramchandra (supra), the Tribunal had laid down 4 tests to determine wheth....