2025 (7) TMI 290 - AT - Customs

Smuggling of Gold and Indian Currency - burden to prove u/s 123 of the Customs Act 1962 - confiscation in terms of Section 121 of Customs Act 1962 and imposition of penalty in terms of Section 117 of Customs Act 1962 - HELD THAT - It has been clear that the principal allegations are not with respect to the appellants. The onus to prove the above observations was purely on Rahul Kapoor and not on the appellants as is otherwise recorded in para 59.2 itself. Reliance has been placed on Rahul Kapoor s statement also but it is observed that the appellants were some of his parties who came to him to purchase the gold. There is no whisper in the entire statement that the appellants were involved with him with an alleged act of smuggling nor there is any deposition that the appellants had any knowledge of the fact that the gold which they are purchasing from Rahul Kapoor is a smuggled gold. It is held that Rahul Kapoor s statement cannot be the basis of passing any order against the appellant for holding them the conspirator/abettor in the crime of smuggling of gold. Similarly in the statement of the partners of Rahul Kapoor viz. Vijay Kapoor and Monu Kapoor there is no allegation about the appellants to have been involved with them or to have knowledge about the gold which they were supposed to purchase to be the smuggled gold. On perusal of statements of the appellants as have been recorded in the impugned order it is not found that even single deposition which may amount to the admission of the appellants being involved in the act of alleged smuggling or having any knowledge about the said activity of their vender. The foreenic analysis of digital date has also not reflected anything to establish such connect between the appellants Rahul Kapoor/his partners which may prove that the appellants had the knowledge of the alleged illegal act. The adjudicating authority has wrongly formed an opinion that the appellants had already bought gold from Rajesh Sehgal it is coming apparent from the record also from the Panchnama that the appellant entered the shop of Rajesh Sehgal when DRI officers had already started searching the premises. The Indian currency was recovered from the appellants which they had brought along with them from Panipat to purchase the respective quantity of gold. Thus it stands established that they had hot purchased the gold by the time their money got seized - Also the presumptions and assumptions can never be the basis for imposition of penalty. Support drawn from the decision of Hon ble Apex Court in the case of Hindustan Steels Ltd. Vs. State of Orissa 1969 (8) TMI 31 - SUPREME COURT wherein it has been held that penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law and was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. The Hon ble Court further held that even if a minimum penalty is prescribed the authority competent to impose penalty will be justified in refusing to invoke penalty when there is a technical or venial breach of the provisions of the Act or where the breach flows from the bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Thus on the same analogy the party are not liable for any penal action and so the penal proceedings initiated in the show cause notice merits to be dropped. The appellants are wrongly have been involved in the act of smuggling for which Rahul Kapoor and his partners might be responsible. Appellants are found to not to even have any knowledge of the alleged illegal act of smuggling of gold. Mere act of purchasing gold without bill is highly insufficient to confirm the grave allegations of conspiring the act of smuggling of gold. Accordingly the order imposing penalty on the appellants and confiscating their money is held not sustainable. Appellants are held entitled to get their respective money back - appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the appellants, who were found in possession of Indian currency at the premises of a shop where smuggled foreign-origin gold was recovered, can be held liable as abettors or conspirators in the offence of smuggling under the Customs Act, 1962.

- Whether the seizure and confiscation of the Indian currency carried by the appellants, intended for purchase of gold from the said shop, is justified under the provisions of the Customs Act.

- Whether imposition of penalty under Section 117 of the Customs Act, 1962 on the appellants is sustainable in the absence of evidence establishing their knowledge or involvement in smuggling activities.

- The evidentiary burden and onus of proof concerning licit possession of the seized gold and currency and the appellants' mens rea regarding the alleged smuggling.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Liability of appellants as abettors or conspirators in smuggling

Relevant legal framework and precedents: The Customs Act, 1962 provisions relating to smuggling, abetment, and conspiracy were invoked, specifically Sections 117 (penalty), 121 (confiscation), and 123 (burden of proof). The Court referred to precedents emphasizing the need for clear mens rea and deliberate involvement to impose penalty (citing the Apex Court in Hindustan Steels Ltd. Vs. State of Orissa).

Court's interpretation and reasoning: The Court noted that the principal allegation and onus to prove the illegal possession and smuggling rested on Rahul Kapoor and his partners, not the appellants. The appellants were buyers who came to purchase gold from Rahul Kapoor's shop. Their statements did not reveal any admission or knowledge of smuggling activities. The Court emphasized that mere presence at the premises or possession of currency intended for purchase does not establish conspiracy or abetment.

Key evidence and findings: The statements of appellants, forensic examination of digital data, and absence of incriminating documents or admissions against appellants were crucial. The statements of Rahul Kapoor and his partners did not implicate the appellants in smuggling or knowledge thereof. The Panchnama established the timing of currency seizure before any purchase was made, negating the claim that appellants had already bought smuggled gold.

Application of law to facts: The Court applied the principle that penalty and confiscation require proof of conscious wrongdoing or knowledge of illegality. The appellants' status as small-scale jewellers purchasing gold at cheaper rates without bills was insufficient to infer criminal intent or conspiracy.

Treatment of competing arguments: The Revenue argued that appellants' knowledge was implied by their repeated purchases at lower prices without bills and that they failed to exercise "caveat emptor." However, the Court rejected this, holding that assumptions and presumptions cannot substitute concrete evidence of mens rea.

Conclusions: The appellants cannot be held liable as abettors or conspirators in smuggling without evidence of knowledge or involvement. The principal liability lies with Rahul Kapoor and his partners.

Issue 2: Justification for seizure and confiscation of currency carried by appellants

Relevant legal framework and precedents: Sections 110 and 121 of the Customs Act, 1962 authorize seizure and confiscation of goods and currency related to smuggling. The Court also considered principles governing confiscation linked to proceeds or intended proceeds of smuggled goods.

Court's interpretation and reasoning: The adjudicating authority held that the currency carried by appellants was intended for purchase of smuggled gold and hence liable for confiscation. However, the Court found that the currency was seized before any transaction occurred and that appellants had not actually purchased smuggled gold at the time of seizure.

Key evidence and findings: The Panchnama and timing of seizure established that appellants had only brought currency to purchase gold but had not completed any purchase. There was no evidence that the currency itself was proceeds of crime or that appellants had knowledge of illegality.

Application of law to facts: Confiscation requires a nexus between the currency and the offence. Mere possession of currency intended for purchase, without knowledge or completed illegal transaction, does not justify confiscation.

Treatment of competing arguments: Revenue's argument that currency was related to smuggled gold purchase was countered by the factual timeline and absence of evidence of completed transactions or knowledge.

Conclusions: Confiscation of the appellants' currency was not justified and was set aside.

Issue 3: Sustainability of penalty under Section 117 of Customs Act

Relevant legal framework and precedents: Section 117 prescribes penalty for violation of Customs Act provisions. The Court relied on the Apex Court's ruling in Hindustan Steels Ltd. emphasizing that penalty should not be imposed unless there is deliberate or conscious violation or dishonest conduct.

Court's interpretation and reasoning: The Court observed that the appellants' conduct did not demonstrate deliberate defiance of law or conscious disregard of obligations. Their bona fide belief in purchasing gold without knowledge of smuggling negated the basis for penalty.

Key evidence and findings: Absence of admissions, incriminating documents, or forensic evidence linking appellants to smuggling. The appellants' statements consistently denied knowledge of illegality.

Application of law to facts: The Court applied the principle that technical or venial breaches, or those arising from bona fide belief, do not warrant penalty. Mere purchase of gold without bills, without knowledge of smuggling, is insufficient for penalty.

Treatment of competing arguments: Revenue's reliance on appellants' repeated purchases at lower prices without bills as evidence of knowledge was rejected as speculative.

Conclusions: Penalty imposed on appellants was not sustainable and was set aside.

3. SIGNIFICANT HOLDINGS

"The principal allegation against Noticees is that Shri Rahul Kapoor along with Shri Vijay Kapoor @ Anil Kapoor and Shri Monu Kapoor entered into a criminal conspiracy with Tilak Raj @ Pankaj Dhingra to buy and sell smuggled gold of foreign origin. Said Shri Rahul Kapoor neither produced any document(s) in support of licit import and possession of the seized yellow colour metal bars & cut pieces of gold collectively weighing 35175.8l grams at the time of seizure nor at the time of investigation. The onus to prove that the seized gold was not smuggled lies on said Shri Rahul Kapoor."

"Presumptions and assumptions can never be the basis for imposition of penalty."

"Penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law and was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation."

"Mere act of purchasing gold without bill is highly insufficient to confirm the grave allegations of conspiring the act of smuggling of gold."

Final determinations:

- The appellants were not proven to be abettors or conspirators in the smuggling of gold.

- The confiscation of the Indian currency carried by the appellants was not justified as there was no nexus established between the currency and the offence at the time of seizure.

- The penalty imposed under Section 117 of the Customs Act on the appellants was not sustainable due to lack of evidence of deliberate or conscious wrongdoing.

- The order imposing penalty and confiscating currency was set aside, and appellants were entitled to return of their seized money.