TMI Blog2013 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... gold coins through cogent and reliable evidences. However, on analysis of the evidences on record, I find that the approach of the appellant is ambivalent and incoherent. Initially when the goldcoins were recovered from his possession, while he was in a bullion shop, his instant reaction was that the gold coins had been procured by him from the open market but failed to disclose the name of the shops/vendors. Similarly, the explanation on the possession of Indian currency as proceeds of sale of silver, were on investigation later found to be false. Thus, the Appellant has miserably failed to discharge the burden and also in establishing the second line of defense that it belonged to their family properly which fact has been found to be untrue from a categorical statement dated 12.6.1987of his elder brother, which the Appellant never disputed not the same has been retracted at any point of time. Mere declaring the value of the gold coins and reflecting the same in their Income Tax Returns would not ipso facto establish that these gold coins were acquired/possessed licitly by him. Also, ongoing through the said Income Tax Returns, I find that the same were filed after the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m he had purchased/obtained these sovereigns were not known to him. He had informed that by profession he is aroaming broker and used to earn his livelihood from selling the gold silver bullions in the sonapatty market. On the Indian currency of Rs.20,000/- recovered from his possession, he had stated that he obtained those from one M/s. Joyhind Jewellers on disposal of four Kgs. of Silver article which was purchased from M/s. Jallan Co. of Sonapatty, Kolkata, whose address also was not known to him and furnished his residential address as 1, Mullick Street, Kolkata. The Appellant was arrested and while under the Judicial custody at the Presidency Jail, his statement was again recorded on 10/6/1987,wherein, inter alia, he has disclosed his elder brother s address at Bombay and also stated that he had a joint property at 35/1, Jawharlal Nehru Road, Kailash Buildings, Flat No. 138, Calcutta along with his another brother. 2.3 Necessary investigation was carried out by the Customs offices to ascertain the said statements of the Appellant. Shri Suman Lalowner of M/s. Joyhind Jewellers in his statement dated 15/10/1987 stated that there is no shop at Satyanarayana Park except the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defense evidences and submissions, dropped the proceedings initiated under the Gold Control Act,1968 but wrongly confirmed the Order of confiscation penalty under the Customs Act, 1962. The Ld. Consultant submitted that on this ground alone, the impugned order is not sustainable and hence the order is liable to set aside. Advancing his argument further, the Ld. Consultant has submitted that out of the 45 sovereign gold coins seized from the possession of the appellant, 43 coins pertain to the period prior to independence, as is evident from the inscriptions on the said gold coins, a fact not disputed by the Department. Only two Gold coins pertain to the period after 1947 i.e. of the year 1965 1968 weighing around 16 gms. in total against the total seized quantity of 301.450 gms. The principal argument of the Ld. Consultant is that since these coins pertain to the period prior to 1947 and had been freely available in India during those days, hence the appellant could not be asked to produce evidence to establish that these coins were legitimately possessed by him. The second line of argument advanced by the Ld. Consultant is that these gold coins are the ancestral family property a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for taking licenses and adoption of procedures on possession gold exceeding certain limit; whereas under Customs Act, the gold being a notified item, even procurement of one gram of gold of foreign origin has to be established through cogent evidences that the same are procured licitly and not smuggled. In support, the Ld. A.R. has referred to the judgement of this Tribunal in the case of Annapurna Yarn Fabrics Vs. Commr. of Customs (Port) order No. A-618-619/KOL/2002 dated 10/5/2002. 4.1.The Ld. A.R. for the Revenue further submitted that initially when the appellant was intercepted with 45 Gold sovereigns on 3/6/1987 and in his statement recorded thereafter, the appellant has stated to the officers that these gold coins had been procured by him in the capacity of a broker of bullion and also mentioned that the same were purchased from certain brokers from the Sonapaty market. However, he could not name those brokers/vendors from whom he has purchased such gold coins. Also, the appellant could not correctly explain the source of Indian currency seized from his possession as the names of the vendors of such silver furnished by him. on investigation, the vendors had denied any t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant, in his statement dt.03.06.1987 was that being a freelance bullion broker, these gold coins were procured/purchased from the open market and not smuggled by him. On the Indian currency, found from his possession, the appellant disclosed that the same were sale proceeds of four kgs. of silver and furnished the names of vendors/purchasers of the said silver. The said statement was claimed to have been later retracted by him on 13/6/1987.It is the contention of the Ld. Consultant for the Appellant that the statement dt. 03.06.1987 cannot be considered asa reliable piece of evidence being retracted by the Appellant on 13/6/1987 in view of the principle of law laid down by the Hon ble apex Court in in Vinod Solanki s case and other cases.(cited supra). 6. The principle of law on the validity and reliability of a retracted statement, is now well settled. No doubt the retraction of a statement diminishes its evidentiary value and necessitates to look for corroboration, but it cannot be totally discarded and thrown. In the present case, on analysis of the statement dated 03.06.1987, it is clear that it is not a confessional statement admitting to the act of smuggling of gold coins, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n few of the cited cases, then the burden is heavier on the Appellant to establish the licit possession of the said gold coins through cogent and reliable evidences. However, on analysis of the evidences on record, I find that the approach of the appellant is ambivalent and incoherent. Initially when the goldcoins were recovered from his possession, while he was in a bullion shop, his instant reaction was that the gold coins had been procured by him from the open market but failed to disclose the name of the shops/vendors. Similarly, the explanation on the possession of Indian currency as proceeds of sale of silver, were on investigation later found to be false. Thus, the Appellant has miserably failed to discharge the burden and also in establishing the second line of defense that it belonged to their family properly which fact has been found to be untrue from a categorical statement dated 12.6.1987of his elder brother, which the Appellant never disputed not the same has been retracted at any point of time. 9. Also, I agree with the finding of the Ld. Commissioner (Appeals)and submission of the Ld. A.R for the Revenue that mere declaring the value of the gold coins and reflectin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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