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TMI Blog2009 (9) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 2514.750gms having value of Rs.7,97,731/- were handed over by Shri M.J. Parmar, PSI to the Customs Department on 11-4-94 for taking action under the provisions of Customs Act, 1962. 2. The gold bars were detained from the persons who were not having any import documents to substantiate the licit import thereof. Hence, on a reasonable belief that the seven gold bars made from the aforesaid smuggled gold ornaments, are liable for confiscation, the same were seized under the provisions of Customs Act, 1962. 3. Statements of Shri Talab Siddik Sanghar and Shri Abbas Jaku Bhaya were recorded on 12-4-94 under Section 108 of the Customs Act, 1962 before the Superintendent of Customs (PI), Jamnagar wherein they stated that they had stolen gold ornaments from a jeweller's shop in Malgoi (Dubai) and the gold ornaments were packed in a colour tin and smuggled into India. 4. Statement of Shri Ashwin Mohanlal Soni was recorded on 18-4-94 under the provisions of Section 108 of the Customs Act, 1962, wherein he admitted that he purchased the gold ornaments from Shri Talab Siddik Sanghar and converted the same into gold bars which were sold by him to Shri Chandrakant Harilal Varia and Shri H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Narbheram Soni dated 4-5-94. E - Affidavit of Ishwarlal Narbheram Soni dated 3-5-94. F - Bill dated 31-5-89. G - Bill dated 18-7-90. H - Bill dated 24-4-89. I, therefore, consider it necessary to remand the matter to the adjudicating authority for de-novo adjudication and to pass a fresh speaking order after taking into consideration the additional documents and the following case laws relied on by the learned Counsel: (a) Gianchand & Ors. v. State of Gujrat - 1983 E.L.T. (S.C.) 1365 (b) Gheviarchand v. CC Guntur - 1999 (111) E.L.T. 379 (c) Astt. Collr. of Customs Baroda v. Mukbujusein Ibrahim Pirjada - 10 Guj. Law Reports P 692 (d) Jitendra Pawar v. CC Raipur - 2003 (156) E.L.T. 622 (e) A.W. Agarwal v. CC Kanpur - 2003 (157) E.L.T. 274 (f) Nunna Satyanarayan v. CC Hyderabad (g) Abdul Menon v. CC (Prev.) W.B., 1991 (35) ECR 12 (h) Anup Kumar v. CC Chandigarh - 1992 (42) ECR 669 (i) T.N. Ambi Achari & Ors. v. Collr. of CC, Cochin - 1988 (19) ECR 498 (j) Kapildeo Prasad v. CC (Prev.) Patna - 2002 (142) E.L.T. 668 (k) Jamal Ali Mandal v. CC(P) W.B., 2002 (144) E.L.T. 100 (l) M.P. Jain v. CC - 1988 (37) E.L.T. 577 6. All the four appeals are accordingly remanded." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant alone but there are corroborative statements of carriers, smugglers, sellers, purchasers, melters, and there are also evidences regarding sales. He also submits that all these aspects have been discussed in detail by the Commissioner. As regards retraction, he submits that it is settled law that the statements retracted before Customs officers are not valid as evidence and further the burden to prove that the statements were recorded by use of coercion, threat, inducement, etc. is on the person making retraction and in this case, no evidence has been put forth by the appellants. 13. In this case, the 7 gold bars of 16-18 purity contained in 5 boxes were handed over by the Police to the Customs on 11-4-94 for action under Customs Act, 1962 after they found that the same were smuggled into India. It is noticed that the facts of the case have been well substantiated by the statements of several persons involved in the case recorded by the officers of the Revenue on various dates from 12-4-94 onwards till 26-7-94. The very fact that the statements were recorded over a period of 3 months and the appellants had time to think over the issue and give their statements shows subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bullion Touch Refinery. It is noted that one Shri Lalbhai Vithaldas Somaiya is stated to have given to Shri Mukundlal Harilal Patadia 320gms of gold. However, the receipt dated 21-3-94 shows 510gms of gold. It appears that 190gms of gold has been added by Shri Mukundlal Harilal Patadia. However, he has not shown the source of 190gms of gold. Further, it is claimed by one Shri Vinaykumar Liladhar Somaiya that the gold - gold ring (Kadu) and chain - was brought by his brother Shri Hitesh Liladhar Somaiya on 16-8-92 from Kenya after payment of duty. It is seen from the Customs Receipt No. 012055 dated 16-8-92, that the weight of two chains and one ring (Kada) is 390gms. All these figures do not tally. Moreover, description of the gold items mentioned in the receipt dt. 21-3-94 differs from that of in the labour bill receipt of the refinery. As the evidence produced is self-contradictory, the same appears to be product of an after thought. I hold that the affidavits and other receipt and bills are prepared as self-serving documents and therefore the same are not acceptable. Accordingly, the same are rejected." 16. I find that the Commissioner is right in doing so since when specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 123 of the Customs Act, 1962 is not pari materia with the provisions of Sea Customs Act. Since the Commissioner has dealt with the issue in detail and the learned advocate for the appellant could not show that the judgment is applicable to the provisions of Customs Act, 1962, I do not think it is necessary to go into these details. 20. In view of the above, I do not find any valid reason to interfere with the order confiscating gold bars absolutely to the Government by the Commissioner in view of the fact that the same were smuggled into India in contravention of the provisions of Customs Act, 1962 and therefore are liable to confiscation under Section 111(d), 111(e) and 111(i) read with Section 120(1) of Customs Act, 1962. 21. As regards penalty, I find that the total value of the gold seized was Rs.7,18,857/- and I also find that the appellants have purchased the gold with an intention to make some profit knowing fully well that the same was smuggled. Since the gold has been absolutely confiscated, I feel that there is no need to impose very heavy penalty. Accordingly, penalties imposed upon the appellants under Section 112(b) of Customs Act, 1962 are reduced to the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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