TMI Blog2010 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... tly i/b T.C. Kaushik, for the Appellant. Shri Arun H. Mehta, for the Respondent. [Judgment per : R.M. Savant, J.]. - The above Customs Appeal has been filed by the Commissioner of Customs being aggrieved by the Order dated 29th June, 2005, passed in Appeal No. C/331/2000 by the Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai (hereinafter referred to as "CESTAT"). The questions of law involved can be gainfully reproduced as follows : "(a) Whether CESTAT was correct right in law in setting aside the absolute confiscation of Indian Currency amounting to Rs. 2,27,100/- under Section 121 of the Customs Act, 1962 and penalty of Rs. 1,00,000/- imposed under Section 112(b). (b) Whether the findings of the Tribunal that the Revenue had failed to establish the necessary ingredients for invoking Section 121 of the Customs Act, 1962, was based on no evidence or partly relevant or partly irrelevant evidence and is otherwise perverse and arbitrary." 2. The factual martix involved in the above Appeal can be stated thus : On the basis of the information received by the officer of Marine and preventive Wing of the then Customs (pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities were satisfied that the goods of foreign origin under seizure were imported into India in contravention of the provisions of the said Act and since the burden cast under Section 123 of the said Act to prove that some of the goods covered by the said Section were not smuggled, was not discharged by any one, the authorities issued a Show cause notice dated 28-12-1992 to the Respondent, one Abdullah Mohammed and one Siddique requiring them to show cause as to why the goods of foreign origin valued at Rs. 1,63,493/- should not be confiscated under the provisions of Section 111(d) and 111(p) of the said Act and as to why the Indian currency amounting to Rs. 2,27,100/- should not be confiscated under the provisions of Section 121 of the said Act and as to why the penalty should not be imposed on each of them severally under the provisions of Section 112 of the said Act. The said Show Cause Notice was replied by the Respondent. The allegations in the said show cause notice were denied by him and in the said reply it was inter alia contended that the goods under seizure do not belong to him. In the said reply it was further contended that the seized currency was given to him by a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of the view that since no records of Income tax returns, balance sheets of Badari hotel have been produced by the Respondent, there was, therefore, no material produced by the Respondent to indicate that the said amount was legally acquired. The said authority was also of the view that since the Respondent had not pointed out the facts of the legal acquisition of the Indian Currency amounting to Rs. 2,27,100/- from 31-7-1992 i.e. the date of seizure till 15-9-1992 i.e. the date of retraction. It was unlikely that he was in possession of the documents i.e. copy of the agreement dated 24-7-1992 and yet chose to remain silent for such a long period despite loosing custody of the currency seized. The said authority was of the view that nothing prevented the Respondent from producing the documents at the time of seizure, that the currency was legally acquired or to tell the authorities that he has the documents in support of his said case. The said authority also considered the aspect that the goods were seized from the premises being Room No. 103 hotel Hayat which was booked on 31-7-1992 in the name of the Respondent who was the occupant and was also present in the said room. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal, it was contended that since the Respondent did not question confiscation of the goods of foreign origin as the same did not belong to him, the only issue which arose for consideration before the Tribunal was as regards the confiscation of Indian currency amounting to Rs. 2,27,100/-. 6. On behalf of the Respondent, it was contended before the Tribunal that the burden to prove that the currency was the sale proceeds of smuggled goods was on the revenue and that they have failed to discharge the said burden and, therefore, requirement of Section 121 of the said Act has not been satisfied. The Tribunal accepted the said contention made on behalf of the Respondent and held that since the requisites of Section 121 of the said Act have not been fulfilled, the Tribunal set aside the confiscation of the Indian Currency as well as the imposition of the penalty on the Respondent and the Appeal was accordingly allowed. As indicated above, it is the said order dated 29-6-2005 that is under challenge in the instant Appeal. We have heard Shri R.S. Jetly appearing for the Appellant and Shri Arun Mehta appearing for the Respondent who advanced submissions in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was the sale proceeds out of the sale of foreign goods. Now coming to the retraction, it would be significant to note that the said retraction is by letter dated 15-9-1992 i.e. almost after a period of one and half months of 31-7-1992 when the statement of the Respondent was recorded. In the said retraction, the Respondent disowned the said goods recovered from his room, as also sought to justify the possession of the Indian currency of Rs. 2,27,100/- seized from him on the basis of an agreement purported to be dated 24-7-1992, in pursuance of which, he claimed in the said retraction that he had received the said sum of Rs. 2,27,100/- for running his hotel business. The authorities below have, in our view, rightly rejected the said retraction on the ground that the possession of the said amount of Rs. 2,27,100/- which sought to be justified on the basis of the agreement dated 24-7-1992 could not be accepted inasmuch as, if the Respondent really had the documents in support of possession of Rs. 2,27,100/- in his possession, he could have produced the same before the authorities immediately or at least told the authorities on 31-7-1992 as regards the origins of the said amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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