TMI Blog2023 (8) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of any provisions of the Customs Act. Further, in the case of SHRI HEM RAJ SONI, S/O SHRI HEERA LAL AND SHRI DWARKA DASS, S/O SHRI POKAR DASS VERSUS CCE, JAIPUR [ 2014 (5) TMI 88 - CESTAT NEW DELHI] , this Tribunal has observed The contention of the Revenue that they are competent to confiscate the sale proceeds of the smuggled goods under Section 121 of the Customs Act is wholly fallacious. Thus, no evidence has been adduced against the appellant for involvement in the activity of smuggled gold and no cogent evidence has been produced apart from the statements recorded during the course of investigation that the appellant was involved in the activity of smuggled gold and cash recovered during search was the sale proceeds of smuggled gold. Therefore, the penalty on the appellant is not imposable. In the light of the above observations by the Hon ble High Court of Punjab Haryana in M/S G-TECH INDUSTRIES VERSUS UNION OF INDIA AND ANOTHER [ 2016 (6) TMI 957 - PUNJAB HARYANA HIGH COURT] , it is held that as the statements which have been relied upon the adjudicating authority have not been examined in terms of Section 138 (B) of the Customs Act, 1962, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... athuram Saha, Shri Haralal Das Shri Rakesh Saha. Shri Bikash Sarkar revealed that the owners of the shop cum office premises were Shri Gobinda Das (the Appellant) and his brother, Shri Bapi Das. The employees were asked to contact Shri Gobinda Das over phone and asked him to come to the office cum shop premises immediately but Shri Gobinda Das informed that he was very ill and it will not be possible for him to come at that time. Then shop was searched. During the course of search, one cloth bag was found in the possession of Shri Nathuram Saha containing Rs.19,46,200/- in different denomination and Rs.19,87,500/- on different denomination were recovered in the possession of Shri Rakesh Saha. From a drawer in the office, some loose documents , cash memo/Invoice bill and Indian Rupees amount to Rs,3,78,580/- were also recovered. None of the four persons present in the premises during search and could produce any legal documents in support of possessing such huge amount of currency notes. No cash book or ledger for the cash was found in the office. The employees admitted that the cash found in the shop are sale proceeds of gold. As the employees could not produce any documents in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bapi Das or Shri Bharat Biswas used to contact him over phone. He also submitted that that neither he nor Shri Shyam Sarkar has any legal/licit documents for the recovered 140 pieces of gold biscuits smuggled from Bangladesh. 2.6 The statement of Shri Shyam Sarkar also recorded , who stated that he is involved in the business of his brother-in-law, namely, Shri Bharat Biswas. Shri Bharat Biswas has illegal business/trading of Bangladeshi Taka for which he along with Shri Bharat Biswas used to travel to the Hridaypur residence of Shri Bapi Das alis Chhotobabu and also to his office at Nalini Seth Road. Shri Bharat Biswas has told him to carry gold 20-22 times in a month from Ranaghat or Barasat, for which, he would pay Rs.1000 per trip and admitted that since last November, he is involved in this work of carrying gold. 2.7 On 22.04.2017 at morning, he as per the direction of Shri Bharat Biswas, met Shri Mansoor (a Bangladeshi) at Aranghata Railways Station and received 140 pcs. of biscuits in packed condition in two packets, one containing 60 pcs. and the other containing 80 pcs.. Then, he called Shri Asit Roy and asked Shri Asit Roy to come to the new house of Shri Bharat Bis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency and gold of 140 pcs biscuits were absolutely confiscated and penalties on the co-noticees were imposed and a penalty of Rs.4,88,18,000/- was imposed on the appellant. 2.13 Aggrieved by the said imposition of penalty on the appellant, the appellant is before us. 3. The ld.Counsel appearing on behalf of the appellant submits that in the reply to the Show Cause Notice, the appellant is denying and disputing the allegations made in the show cause notice in respect of his alleged involvement in smuggling, contending inter alia, that the gold was recovered from Shri Shyam Sarkar and Shri Asit Roy. The appellant was not aware of that the said gold was smuggled from Bangladesh. The said two persons from whom the gold was recovered did not say that the gold was to be delivered to the appellant. No gold was recovered from the premises no. 305 of 32, Nalini Seth Road, Kolkata- 700007. There is no evidence that the appellant was, in any way, involved in respect of the said gold recovered from those two persons. The recovered Indian Currency was not the sale proceeds of the smuggled gold. The Department did not proceed further to investigate from the persons from whose the said India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponse to Summons, ipso facto does not mean that the appellant was involved in this smuggling. There is no evidence that the Indian Currencies were the sale proceeds of this smuggled gold. The finding is not sufficient for imposition of penalty on the appellant since the involvement of the appellant in smuggling has not been proved beyond doubt. Decisions referred in the case of Ramchandra has not been dealt with. The Order is non-speaking. 3.1 The findings of the Adjudicating Authority as contained in the adjudication order, are the only finding which are not sufficient for inferring involvement of the appellant in the smuggling of gold. The carrier of the gold did not say that the gold to be delivered to Gobinda Das or the gold was meant for delivery to Gobinda Das. The recovery of Indian Currency by itself does not mean that the same are sale proceeds of the smuggled goods. The appellant did not claim the said currency and/or disowned the same. There is no evidence for holding these currencies as sale proceeds of smuggled gold. The essential requirement for holding the said Indian Currency as sale proceeds of smuggled gold was not satisfied. Non-appearance in response to Sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the said alleged gold sold by them was interrogated . Moverover, the statement of the appellant was never recorded during course of investigation. These facts are not in dispute. 7. We further take note of the facts that merely on the basis of the statements of the employees of the appellant, it has been concluded that the seized currency is the sale proceeds of smuggled gold, but nowhere it has been established from whom the gold was purchased and to whom the gold was sold and how the money was transacted. 8. We further take note of the facts that the smuggled gold and the cash recovered have been absolutely confiscated in this case and no other co-noticee has challenged the impugned order before us. 9. We find that the similar issue has been examined by the judicial pronouncement in Ramchandra Vs. Collector of Customs reported in 1992 (60) ELT 277 (Tribunal), wherein this Tribunal has observed as under : 5. It is also seen that the charges under the Gold (Control) Act has been dropped against all the persons to whom show cause notice has been issued and the charges under the Customs Act has been dropped against the other two. It would appear that the penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 11. Further, in the case of Hem Raj Soni Vs. Commissioner of Customs, Jaipur reported in 2014 (308) ELT 600 (Tri-Del.), this Tribunal has observed as under : 7. The Hon ble Punjab Haryana High Court in the case of Gurmukh Singh v. Union of India Others - 1984 (18) E.L.T. 274 (P H) has observed that if there is no record wherein it could be shown that the petitioner had at any stage imported any goods in pursuance of the import licence, therefore it cannot be the case of the authorities that the seized currency is the sale proceeds of the smuggled goods. In the absence of such evidence the amount is returnable to the person from whom it is seized. The contention of the Revenue that they are competent to confiscate the sale proceeds of the smuggled goods under Section 121 of the Customs Act is wholly fallacious. The Tribunal in the case of Dattaji Deokar v. CC, Bhubaneswar-I - 2002 (147) E.L.T. 390 (Tri.-Kolkata) has held that Revenue is required to prove beyond doubt that the Indian currency was sale proceeds of smuggled gold and in the absence of any evidence on record to establish the same, the confiscation of the Indian currency is not justified. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods. 13. In the light of the above judicial pronouncement and the facts and circumstances of the case, we find that no evidence has been adduced against the appellant for involvement in the activity of smuggled gold and no cogent evidence has been produced apart from the statements recorded during the course of investigation that the appellant was involved in the activity of smuggled gold and cash recovered during search was the sale proceeds of smuggled gold. Therefore, the penalty on the appellant is not imposable. 14. Further, in the case of G-Tech Industries Vs. Union of India reported in 2016 (339) ELT 209 (P H), the Hon ble High Court of Punjab Haryana, has examined the issue and observed as under : 15. The rationale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the Gazetted Central Excise officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority in the para 38.25.1 of the O-i-O in support of his argument that the statement of a co-accused can be relied upon and it is an admissible evidence. 14. Heard both sides and perused the evidences available on record. 15. We find that the entire case of the Revenue has been built on the basis of the statement of the co-accused. The adjudicating Authority has given his findings about the role of the Appellant in paras 38.25.1 to 38.25.6 and para 38.29. For the sake of ready reference the relevant paras are reproduced below. 38.25.1. I have perused the reply of Shri Gobinda Das to the instant Show Cause Notice. I find that Shri Bishnupada Dey had on interception confessed on 02.04.2017 tht he was offired the work of carrying smuggled gold in lieu of monetary remuneration by Gobindababu @ Gobinda Das. I find that Bishnupada Dey had at the ouset admitted the role of Gobindababu i.e. Gobinda Das in the gold smuggling operations. I find that Bishnupada Dey taking the name of Gobindababu i.e. Gobinda Das without any hesitation and also furnishing a detailed picture of the activities of Gobindababu i.e. Gobinda Das clearly establishes that Gobinda Das was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the defense by Shri Gobinda Das @ Gobindababu that the mobile Number 8276875110 belonged to another person and thus the Call Details cannot be attributed to him is liable to be rejected outright. 38.25.6. In view of the aforesaid, I find that the defense submitted by Shri Gobinda das @ Gobindababu, is at Variance with the facts of the case, the admissions of Shri Bishnupada Dey in Course of his statements recorded under Section 108 of the Customs Act, 1962, which has specified the role of Shri Gobinda Das @ Gobindababu in the smuggling operations and is thus liable to be rejected outright. 38.29.I find Shri Gobinda Das @ Gobindababu has played a prominent role in the smuggling of subject gold from Bangladesh and its delivery at Kolkata/Dumdum. It is indisputable that Shri Gobinda Das @ Gobindababu had engagned Shri Bishnupada Dey to carry the smuggled gold from Bisirhat to Kolkata in return flro monetary consideration. It is admitted that Shri Gobinda Das had introduced Shri Ratan Kumar Saha to Shri Bishnupada Dey and it is evident that he instructed Shri Dey to deliver the smuggled gold biscuits to Shri Saha. Summon was issued to Shri Gobinda Das @ Gobindababu for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Revenue has mainly relied upon the statement of Mr Dey to implicate the Appellant in this case. They have relied upon some decisions in the Order-in-Original to support their claim that the statement of the co-accused is an admissible evidence. We have examined the decisions cited by the Adjudicating Authority and our observation about the relevancy of those cases in the present case is as below: 19.1 The First decision relied upon by the Revenue is Paraveen Kumar Saraogi Vs. Union of India reported in 2014 (299) ELT 151 (All.). The said decision was relating to granting of bail in a case of a complaint under Section 135 of the Customs Act, 1962 and subsequent application for quashing of bail under Section 482 of the Criminal Procedure Code. This is not a case similar to the present case on hand and hence, the said decision has no application in the Appellant s case. 19.2. The second decision relied upon by the Revenue is Naresh J. Sukhawani- Vs. Union of India reported in 1996 (83) ELT 258 (S.C.). In this case, the statement of co-accused was supported by other evidences like photographs and other intrinsic material as mentioned in paragraph 3 of the said decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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