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TMI Blog2010 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962, was based on no evidence or partly relevant or partly irrelevant evidence and is otherwise perverse and arbitrary." 2. The factual martix involved in the above Appeal can be stated thus : On the basis of the information received by the officer of Marine and preventive Wing of the then Customs (preventive) Collectorate, Bombay searched was carried out of the premises being Room No. 103 Hotel Hayat, 12/14, Dontad Street, Haji Noor Mohammed Ahmed Marg, Dongri, 400 009 on 31st July 1992. In the said search the officers recovered electronic and misc goods of foreign origin and also recovered Indian currency. Apart from the said room some goods were also recovered from the passage in front of the said room. The Respondent-Shamsuddin M.A. Kadar who was the occupant of the said room could not produce any legal documents in respect of the said goods or the Indian currency, electronic and misc goods of foreign origin totally valued at Rs. 1,63,493/- were seized in the reasonable belief that those are smuggled into India and are liable to confiscation under the provisions of Customs Act, 1962 (brevities sake referred to as the said Act). The statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. The said Show Cause Notice was replied by the Respondent. The allegations in the said show cause notice were denied by him and in the said reply it was inter alia contended that the goods under seizure do not belong to him. In the said reply it was further contended that the seized currency was given to him by a party for conducting the business of hotel Badari and the details as to how the said currency was acquired were already mentioned in the letter dated 15-9-1992. It was further stated in the reply that the panchnama is not genuine and his statement was neither true nor voluntary. He requested for cross examination of the witnesses and urged for granting a personal hearing. The Deputy Commissioner of Customs (preventive) adjudicated the said show cause notice and confirmed the same by his order dated 29-10-1993 and directed the absolute confiscation of the goods of foreign origin valued at Rs. 1,63,493/-, the confiscation of the Indian currency amounting to Rs. 2,27,100/- and imposed a personal penalty of Rs. 50,000/- on the Respondent under the provisions of the said Act. In so far as, the penal proceedings against Siddique and Abdullah Mohammed were concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to tell the authorities that he has the documents in support of his said case. The said authority also considered the aspect that the goods were seized from the premises being Room No. 103 hotel Hayat which was booked on 31-7-1992 in the name of the Respondent who was the occupant and was also present in the said room. The said authority, therefore, confirmed the show cause notice and ordered absolute confiscation of the goods of foreign origin valued at Rs. 1,63,493/-, as also absolute confiscation of Indian currency amounting to Rs. 2,27,100/- under the relevant provisions of the said Act. The said Authority imposed penalty of Rs. 1,00,000/- on the Respondent under the provisions of Section 112(b)(ii) of the said Act and imposed penalty of Rs. 10,000/- on Siddique under Section 112 of the said Act. However, in so far as, the penal proceedings against Abudllah Mohammed are concerned, they were kept in abeyance till he was apprehended and his statement recorded. 5. Being aggrieved by the said order dated 3-5-1999 the Respondent filed an Appeal. The said Appeal came to be dismissed and the order in original came to be confirmed by the Commissioner of Customs (Appeals) by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the penalty on the Respondent and the Appeal was accordingly allowed. As indicated above, it is the said order dated 29-6-2005 that is under challenge in the instant Appeal. We have heard Shri R.S. Jetly appearing for the Appellant and Shri Arun Mehta appearing for the Respondent who advanced submissions in support of their respective cases, namely in support of confiscation and against it. 7. As can be seen from the reading of the order in original as well as the order passed by the Commissioner of Customs (Appeals), the said two authorities have not accepted the retraction of the statement by the Respondent vide his letter dated 15-9-1992 and have proceeded on the basis of the statement of the Respondent recorded on 31-7-1992 i.e. the date of seizure. Both the authorities have for cogent reasons stated as to why the retraction cannot be accepted. The Tribunal however, without going into the said aspect has adjudicated the matter on the touch stone of Section 121 of the said Act and the fulfillment of his requirement and the Tribunal without referring to the statement of the Respondent dated 31-7-1992 or without mentioning as to why the retraction is to be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement dated 24-7-1992 could not be accepted inasmuch as, if the Respondent really had the documents in support of possession of Rs. 2,27,100/- in his possession, he could have produced the same before the authorities immediately or at least told the authorities on 31-7-1992 as regards the origins of the said amount of Rs. 2,27,100/-. Both the authorities below were, therefore, right in our view that the case of the Respondent that the said amount was advanced to him for the purpose of his business by a party with whom he had entered into an agreement dated 24-7-1992, could not be accepted in the absence of any documents under the Income Tax Act or the audited accounts of the Hotel business run in the name of hotel Badari. 9. We, therefore, find merit in the submissions of the Learned Counsel for the Appellant that the said retraction was an after thought and could not be taken into consideration. We to satisfy ourselves, had asked the Learned Counsel for the Respondent to produce the original agreement dated 24-7-1992. The Learned Counsel for the Respondent had accordingly produced the said Agreement. A perusal of the said Agreement indicates that the stamp paper is in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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