1995 (7) TMI 230 - AT - Central Excise

Issues Involved:
1. Voluntariness and validity of the appellant's inculpatory statement.
2. Applicability of Section 121 of the Customs Act, 1962.
3. Onus of proving that the seized currency represented the sale proceeds of contraband gold.
4. Validity of the penalty imposed under Section 112 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Voluntariness and Validity of the Appellant's Inculpatory Statement:

The appellant contended that his inculpatory statement was not voluntary and was made under compulsion and threat. He retracted the statement when he filed for bail and communicated the retraction to the Assistant Collector on 4-8-1988. The learned Consultant argued that the statement should not be considered as it was not voluntary.

The opposing view was that the retraction was belated without any explanation, and the statement was voluntary and true. It was noted that the appellant did not cross-examine the officer who recorded the statement, thus failing to substantiate the claim of coercion. The tribunal found the statement to be voluntary and true, meriting acceptance.

2. Applicability of Section 121 of the Customs Act, 1962:

The appellant argued that Section 121 of the Act was not applicable and that the onus was on the Department to prove that the money represented the sale proceeds of contraband gold, which they failed to do. The learned Consultant cited previous rulings to support this contention.

The tribunal noted that the appellant's statement admitted the currency represented the sale proceeds of contraband gold. The tribunal found that the source of money was disclosed after a significant delay of seven months, which lacked any satisfactory explanation. Therefore, the tribunal upheld the application of Section 121 and the confiscation of the currency.

3. Onus of Proving that the Seized Currency Represented the Sale Proceeds of Contraband Gold:

The appellant contended that the onus to prove that the currency represented the sale proceeds of contraband gold was on the Department. The learned Consultant argued that the Department did not discharge this burden and that the appellant's explanation of the money being from a sale agreement should be accepted.

The tribunal held that the appellant's admission and the circumstances, including the concealment of the paper slip and the delay in disclosing the source of money, sufficiently proved that the currency was the sale proceeds of contraband gold. The tribunal found the appellant's explanation unconvincing and upheld the findings of the adjudicating authority.

4. Validity of the Penalty Imposed under Section 112 of the Customs Act, 1962:

The appellant challenged the validity of the penalty imposed under Section 112 of the Act. The tribunal, however, found that the appellant was concerned as an abettor in the commission of an offense relating to the currency in question and was liable for penal consequences. Therefore, the tribunal confirmed the penalty of Rs. 5,000/-.

Separate Judgments:

Member (T):

Member (T) disagreed with the majority view, arguing that the appellant's statement alone could not form the sole basis for confiscation of the currency. It was noted that the Department did not provide sufficient evidence to prove that the currency was the sale proceeds of smuggled gold. The statement of the appellant was not corroborated, and the charges against Iqbal, who was alleged to have given the currency, were dropped. Member (T) opined that the benefit of doubt should be given to the appellant, and the order of the lower authority should be set aside.

Final Order:

In view of the majority decision, the order of the lower authority confiscating the currency and imposing a penalty on the appellant was set aside, and the appeal was allowed.

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