TMI Blog1995 (7) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... im by one Iqbal and the same represented the sale proceeds of gold biscuits of foreign origin and was given for distribution as compensatory payment on instructions from Indians abroad. The proceedings instituted after further investigation resulted in the impugned order. 3. Shri Srinivasan, the learned Consultant for the appellant, submitted that the inculpatory statement of the appellant is not voluntary and true and was retracted when he filed an application for bail. It was further urged that it was further retracted by a communication to the Assistant Collector on 4-8-1988. The statement was under compulsion and threat and not voluntary. It was urged that Section 121 of the Act is not applicable and the onus that the money represented the sale proceeds of contraband gold is on the Department and the same has not been discharged. Iqbal, who entrusted the currency, has been given the benefit of doubt and exonerated and so no offence is made out against the appellant. The appellant explained the source of money as obtained under a sale agreement dated 23-7-1988 which should be accepted by the Department. The learned Consultant relied upon the ratio of the ruling of the East Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To a specific query as to whether the sale agreement culminated in a sale, the learned Consultant submitted that he does not know anything about it. Therefore, the concealment of the paper slip, the admission on the part of the appellant, which is held to be voluntary, the non-availing by the appellant of opportunity to cross-examine the officer, who recorded the statement, to probabilise the alleged plea of coercion and threat, the conspicuous omission about the source of acquisition in the earlier retraction and belated mention of the same without any satisfactory explanation after 7 months and other circumstances would clearly bring home the charge against the appellant. The rulings relied upon are not applicable and in the East Regional Bench case the clear findings was that there was no evidence that the currency represented the sale proceeds of contraband gold and in the case of this Bench the finding was that there was not an iota of evidence against the appellant to hold that the currency is sale proceeds of contraband goods . The fact of this case stand on a different footing. Therefore, on consideration of the evidence we affirm the findings of the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy. The officers have not elicited any information from the appellant as to the facts when and where and between whom and for what consideration the transaction of smuggled gold took place. The only piece of evidence is the statement of the appellant which has not been corroborated, as the said Iqbal who is stated to have given the currency to the appellant has disowned the same. Section 123 of the Customs Act does not apply to the currency under seizure and, therefore, the burden in cases not covered by Section 123 has to be discharged by the authorities and it has to be shown by the authorities with evidence that the currency by virtue of the nature of transaction is liable to confiscation under Section 121. Since the burden has not been discharged by the authorities and, as stated earlier, since the appellant s statement itself cannot form the sole basis for confiscation of the currency, the currency cannot be held to be confiscable under Section 121. No doubt, the circumstances in the present case may be highly suspicious but suspicion by itself cannot take the place of proof. In a similar case I have held a different view from the learned Brother in the case of Shri K. Mammun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Collector on 5-8-1988 retracting the said statement recorded by the Department. He has also pointed out that the statement had implicated one Iqbal who is said to have dealt with foreign gold biscuits and that this money was said to be the sale proceeds of smuggled gold. The learned Consultant pointed out that the Department, after seizing the currency and recording the statement of the appellant, had made further investigations and had raided the house of Iqbal and also recorded his statement. The Department has issued show cause notice to both the appellant and the said Iqbal. The said Iqbal had denied the statement of the appellant implicating him in gold smuggling and had also dis-owned the currency seized from the appellant. The said Iqbal had plead innocence. The show cause notice had clearly stated that the residence of Iqbal was immediately searched on follow up action on 30th July, 1988 itself but no contraband goods or indiscriminate documents were recovered. It is, therefore, the Consultant submitted, that the learned Collector after scrutinising the reply of Iqbal had exonerated him and dropped the charges against him and therefore it followed that the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department has not filed any appeal or cross appeal against the acquittal of Iqbal. In view of this matter, there is nothing against Basheer and the appellant cannot be accused on a self-indiscriminating evidence in the absence of any corroboration. He pointed out that the Collector has recorded in the order about the retraction made by him on the very next day and also about the letter and postal acknowledgement produced before him. He also pointed out to the evidence on record placed by the appellant about he being an industrialist. He had produced provisional registration certificate from the Director of Industries and Commerce for manufacturing tread rubber. He had also produced evidence of purchase of machinery and setting up of the unit. Therefore, the currency the appellant was carrying were the sale proceeds of the property and in this context the Consultant also pointed out to the sale agreement as well as the letter from the Choondal Panchayat Office, P.O. Kechery - 680501, which is a permission granted to the appellant for conducting a tread rubber unit. The learned Consultant pointed out that Member (J) s opinion was not based on the evidence on record and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice. This statement of Iqbal has found favoured with the Collector, as may be gathered from the findings, and the learned Collector has dropped all the charges against him. The finding given by the Collector in Para 10 of the order is given hereunder :- Basheer had deposed in his statement that the money was given to him by Iqbal which has been denied by Iqbal. Nothing was found from his house when it was searched. There are not sufficient evidence adduced against Iqbal. I therefore extend the benefit of doubt to Iqbal. If this reasoning of the learned Collector is accepted, which has not been challenged by the Revenue by way of filing cross appeal, then the original statement by Basheer on this point is to be taken as a false statement. The Department has not proved any nexus or relationship between Basheer and Iqbal. In the face of this finding of the learned Collector acquitting Iqbal, can it be said that the currency seized from Basheer is the sale proceeds of smuggled gold biscuits handed over to Basheer? The learned Collector has held that nothing was found from the house of Iqbal on search and that no sufficient evidence was adduced against Iqbal. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed received sale consideration from the sale of the immovable property and he is a Small Scale Industrialist and this money seized from him is not the sale proceeds of any contraband smuggled foreign gold biscuits. The appellant has proved that the currency belongs to him. The learned Consultant had also cited the following judgments in his favour : (i) Malar v. Collector of Central Excise, Trichy,[1988 (33) E.L.T. 444 (Tribunal)]. (ii) Ramachandra v. Collector of Customs, [1992 (60) E.L.T. 277 (Tribunal)]. (iii) I.O.L. Ltd. v. Collector of Customs, [1992 (59) E.L.T. 477 (Tribunal)]. (iv) Manindra Chandra Dey v. CEGAT [1992 (58) E.L.T. 192 (Cal.)]. (v) AMCO Electronics v. Collector of Customs [1992 (61) E.L.T. 650 (Tribunal)]. (vi) A.K. Agarwal v. Collector of Customs (Prev.) [1991 (52) E.L.T. 565 (Tribunal)]. On a perusal of the judgments, it is seen that the Tribunal has taken a view that there has to be a nexus between the seized currency and the contraband goods. It has also been held that the burden to prove that the seized currency is the sale proceeds of contraband gold is on the Revenue. The learned Member (T) has rightly relied on the ratio of the earlier o ..... 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