TMI Blog2011 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... knowing fully well that the same were smuggled - the amount of penalty in the instant case is very less and the additional reason why this calls for no interference is also a meager amount of penalty and the same would not require any interference in the wake of the seizure of the gold bars - Appeal is dismissed - 2084 of 2010 - - - Dated:- 1-7-2011 - MR.JUSTICE AKIL KURESHI, MS JUSTICE SONIA GOKANI, JJ. MR DHAVAL D VYAS for Appellant(s) JUDGMENT (Per : HONOURABLE MS JUSTICE SONIA GOKANI) 1. The appellant herein, by way of the present appeal under Section 130 of the Customs Act, (hereinafter referred to as the Customs Act) has challenged the order of Commissioner of Customs (Preventive) dated 4.12.2007 directing the confiscation of gold bars weighing 2254.750 grams valued at Rs.7,18,857/- under the provision of Section 111 read with Section 120 of the Customs Act and also imposing penalty under Section 112(B) of the Act. 2. The brief facts would be necessary to understand the issues that have been raised in the present appeal. 2.1 The Police Sub-Inspector of Jamnagar seized five boxes containing 2514.75 grams of smuggled gold valued at Rs.7,97,73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the contending parties were heard and the Commissioner confiscated five gold bars and also imposed penalties on all the four of them. This was then further challenged before the Tribunal. The Tribunal vide its order dated 23.11.2009 had confirmed the order of confiscation passed by the Commissioner by holding that the five gold bars were smuggled goods, which were smuggled into India in contravention of the provisions of the Customs Act and accordingly were liable for confiscation under Section 111(d), 111(e) and 111(i) read with Section 120(1) of the Customs Act. As the entire gold was absolutely confiscated, the Tribunal had reduced the penalty. However, holding categorically that all the persons including present appellant had intention to make some profit out of the said deal, therefore, even with the complete knowledge of the same being smuggled goods, they had purchased the same. Penalty imposed under Section 112 of the Act on the present appellant is to the tune of Rs.2,00,000/-. 6. Impugned order of confiscation as well as that of penalty is under challenge before this Court where learned advocate Mr. D.D.Vyas appearing for the appellant has emphatically and vehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the seizure must be under the Customs Act by properly authorized Customs Officer. Further reliance is also placed by the learned advocate on the decision of the Apex Court in the case of Noor Aga vs. State of Punjab and anr. reported in AIR 2009(SC) (Supp) 852. It was held herein that exclusive reliance on the statement recorded under Section 108 of the Customs Act was a fundamental error in a prosecution under the NDPS Act. It was argued further on the facts that the present appellant had filed three affidavits of his family members and that of his own to state that the gold belonged to his wife and two daughter-in-laws. He also presented three bills to the Commissioner before retracting his earlier statement given to the officer. Learned advocate also urged to this Court that the statement recorded under duress, once retracted, no reliance can be placed thereon and any adjudication based on such a statement would amount to committing a fundamental error. 7. On duly considering the submissions of the learned advocate and on closely scrutinizing the facts along with the judgments of both the Commissioner and that of the Tribunal , for the reasons to be followed hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he burden of proving otherwise would be on the person from whom the same were seized. This view is also followed with a further emphasis in the decision of the Gujarat High Court in the case of Union Bank of India vs. Adulkadar Abdulgani Hasmani (supra). Although this is an interesting question of law that has been raised, it would be pertinent to mention at this stage that the order under challenge is not concerning prosecution of the appellant nor is the question concluded solely on the basis of statements recorded under Section 108 of the Customs Act. Again, reference also needs to be made of the fact that once the police officer handed over the seized goods to the Customs Department, it was deciding the aspect of confiscation of the smuggled goods brought in the country in contravention of provisions of the Customs Act and, therefore, in the present proceedings issue raised need not be decided by this Court. Statements under Section 108 of the Customs Act have been recorded of both the persons namely, Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar, who were proved to have been smuggled the gold into India and also statements of all those persons, who had purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X
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