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2020 (10) TMI 341 - AT - CustomsLevy of penalty - Smuggling - gold bars bearing foreign origin - Reliability of statements - retraction of statements or not - HELD THAT:- In the case of Shri Nirmalendu Paul, the circumstantial evidence produced by the Department shows that he was caught with the seized gold bars. In his statement under Section 108 of Customs Act, 1962 given on 14.06.2016, and subsequently on 22.08.2016 during investigation, he has confessed that he was carrying the seized gold in his person and that the actual owner was Shri Debraj Paul (Appellant No. 2). He never retracted his statements during the investigation stage. He has also given the mobile number of Shri Debraj Paul and Calls Details Record (CDR) in respect of the mobile numbers given by Shri Nirmalendu Paul showed that users of these mobile numbers were known to each other. Shri Debraj Paul in his voluntary statements denied any link to Shri Nirmalendu Paul and also refused to recognize him - Shri Debraj Paul could not explain as to why Shri Nirmalendu Paul took his name immediately after interception and in the voluntary statements during investigation. He has also stated that he does not have any other business except the grocery shop. But his son Shri Debasish Paul stated that Shri Debraj Paul used to do export import business also and has a valid IEC number. It is found that only after issuance of the Show Cause Notice Shri Nirmalendu Paul, appellant No. 1. changed his version which appears to be an afterthought. During the personal hearing his Advocate claimed that the seized gold were actually recovered from a bag kept under the seat of the bus which was being occupied by Shri Nirmalendu Paul. His advocate also sought for cross examination of the independent witnesses present of the time of the seizure and that his statements were taken under threat and duress. It is found the appellant no. 1 had never altered his statements and until the end of the investigation he maintained that the gold bars were acquired by him on behalf of the appellant no. 2. The confiscation of the seized goods and imposition of personal penalties are justified - quantum of penalty reduced - Appeal allowed in part.
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