TMI Blog1994 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... le proceeds of smuggled gold, and imposing personal penalty of Rs. 10,000/- each on Shri Ashok Kumar Rastogi and Shri Kamlesh Rastogi under Section 112 of the Customs Act and identical penalty on the above two appellants under Section 74 of the Gold (Control) Act, 1968. 2. The brief facts of the case are that on 13-2-1985 the Gold (Control) Preventive Officers of Central Excise Collectorate, New Delhi intercepted Shri Ashok Kumar Rastogi and his brother Ram Chander Rastogi near Red Fort and during the course of the search of the scooter being driven by Ashok Kumar Rastogi, Indian currency of Rs. 2.4 lakhs was recovered from the helmet box of the scooter. Shri Ashok Kumar Rastogi stated that the seized currency was the sale proceeds of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the Department is based principally upon statements of Shri Ashok Kumar Rastogi and his brother Ram Chander Rastogi. Ashok Kumar Rastogi has clearly admitted that the seized currency was obtained by him by sale of smuggled gold and that the sale proceeds were going to be further used for purchase of smuggled gold. The statement is in his own handwriting. The adjudicating authority has rightly concluded that the statement is voluntary in nature and the medical certificate of the OPD of Lok Nayak Jaiprakash Narain Hospital, recording multiple bruises on Ashok Kumar Rastogi having been issued only late in the evening of the next day i.e. 14-2-1985, it is not possible to relate the injuries noticed to the time when the Customs Officers qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purchase of foreign origin gold. It is pertinent to note that Ram Chander Rastogi has not retracted his statement. The absence of anything incriminatory in the statement of Kamlesh Kumar, which was recorded on 11-3-1985 i.e. one month after the seizure does not affect the case of the Department as Kamlesh Kumar has been implicated by both his brothers viz. both Ashok Kumar and Ram Chander Rastogi. 5. Regarding the explanation offered by the appellants with regard to the legal acquisition of the money seized and the contention that the amount was meant for purchase of a house, we can do no better than to reproduce the findings of the adjudicating authority with which we are fully in accord : I have to state that if the money was reall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also withdrawn Rs. 9,000/- on 8-3-1984, Rs. 36,000/- on 9-1-1985. In this case also it is not understood why such a large amount should be withdrawn for a deal which was nowhere insight. In any case the amount could have been withdrawn just a day prior to the proposed deal of the house. Rs. 55,000/- and Rs.55,600/- respectively have been shown as the amount of cash available with Shri Kamlesh Kumar Rastogi and Shri Ashok Kumar Rastogi. I am not going into the possibility of such amount being available with them in the normal course of business. However, what is important as far as the case under the Customs Act is concerned is this that Shri Ashok Kumar Rastogi was found carrying this large amount of cash along with his brother and goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the occupation and control of the appellant was set aside on the ground that there was nothing to show that it represented sale proceeds of smuggled gold and the appellant had never admitted that was sale proceeds of contraband gold. 5.3 In the case of Abdul Mannan v. Collector of Customs reported in 1991 (54) E.L.T. 350 the appellant was not present when his premises was raided on 9-9-1985 and broken metal scrap of foreign origin and synthetic fabrics, shirting of Bangladesh origin was recovered. The goods were lying outside the premises of the appellant. The minor son of the appellant was examined and he categorically denied the ownership or his father having any connection with the goods and he had stated that Indian currency seize ..... X X X X Extracts X X X X X X X X Extracts X X X X
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