TMI Blog2016 (5) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... riminating knowledge, then it was for him to explain or establish those facts within his peculiar knowledge, failing which Customs was entitled to take advantage of the presumption of fact arising against him, in discharging its burden of proof. Department is accordingly held to have proved its case. Therefore, it is held that the seized gold were smuggled goods. Absolute confiscation thereof is sine qua non and no redemption thereof is at all permissible on payment of redemption fine. Learned Commissioner (Appeals) committed grave error in granting option to redeem the offending gold under section 125 of the Customs Act, 1962 on payment of redemption fine of ₹ 15,00,000/-. His order is patently illegal. Therefore, that order on this count is set aside. When offence of smuggling of gold is established in the present case, there shall be no immunity from penalty. Accordingly, the penalty imposed is confirmed. Thus absolute confiscation of gold ordered and penalty imposed on the appellant by learned Adjudicating Authority sustain and that is maintained. - Decided against the appellant - C/00249/2009 - FINAL ORDER NO: 40678 / 2016 - Dated:- 29-4-2016 - SHRI D.N. PANDA, JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Verma were also convicted. MO-1 to MO-3 (which were gold bars and gold biscuits) were not given possession to appellant but were given to Customs. The appellant is innocent. Making false allegation, Customs discarded the duty paid receipt dated 20.04.1992 produced by appellant. No enquiry was done by the Customs on this receipt but was simply ignored on baseless pleas. Appellant prayed that redemption fine being abnormally fixed by Commissioner (Appeals), that should be waived. 2.1 On the other hand, the submission of Revenue is that when gold was seized from appellant that was found to be smuggled gold with foreign markings. Section 123 of the Customs Act, 1962 applies to the present case. Due process of law was followed for seizure of the gold having been found illicitly imported carrying foreign marking therein. Criminal proceeding was also filed against the appellant in the court of the Chief Metropolitan Magistrate. That resulted in his conviction as well as his accomplices. Investigation found that the appellant came from Calcutta impersonating him to be Shri K. Chandra to the airline using the ticket of one K. Chandra. Appellant travelled by the said tickets had obliqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication was made against present appellant as well as R.K. Verma and Gopichand (Soni) Agarwal, this appellant is only before Tribunal. Accordingly his appeal is only dealt by this order. 4. Investigation searched Room No.58 of Hotel Dasaprakash, Madras-84 on 22.04.1992 and the appellant Rajaram Johra was found along with one R.K. Verma thereat. There were 12 gold bars and 10 gold biscuits with foreign markings weighing 2563 gms valued at ₹ 7,35,247.81 concealed in that room. Investigation recovered such gold. Appellant did not disown the same. Rather, he claimed ownership thereof stating that he had received the same form one Abubacker, who was found by investigation to be stranger to him without his identity. Recovery of the offending gold and persons attached to that came to light. R.K. Verma was not only a witness to the search, but also he was found to be a conduit to the smuggling of the gold. 5.1 Rajaram Johra, the appellant on examination revealed that he came from Calcutta boarding Flight No.0544, dated 22.04.1992 on a ticket in the name of one G. Chandra with the above gold for delivery thereof to one R.K. Verma in Madras. However, that ticket was torn into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (who was the mastermind behind the smuggling as well as member of the smuggling racket dealing with the offending goods) to contact Rajaram Johra in Hotel Dasprakash at Madras for taking delivery of the offending gold. He admitted that the rail ticket as aforesaid seized by investigation was used for his travel to Madras from New Delhi. 7.1 When investigation came across the name of Gopi Chand (Soni) Agarwal, they rushed to find out his identity and whereabouts. He was found in premises No.24, Kasi Chetty Street, Madras-79. A telephone bill no.561583, dated 07.03.1992, rent bill for the month of April, 1992, dated 17.05.1992 and rental agreement in two sheets, dated 30.12.1991 executed by one Shri Mahendra Kumar and Shri Suresh Chand were recovered from him. He did not controvert that. When he was examined on 23.04.1992, he revealed that he belongs to Rajasthan and arrived Chennai by Tamil Nadu Express on 24.02.1992 and was staying in Room No.24, Kasi Chetty Street, Madras which belongs to his friend Suresh Verma. 7.2 When Rajaram Johra, R.K. Verma as well as Gopichand (Soni) Agarwal were questioned about source of the gold, they failed to explain whether the gold was lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the appellant with his accomplice. While Rajaram Johra was found with the gold in Dasprakash Hotel, other two conduits were abettors for disposal thereof. Magisterial Court found all of them to be smuggler of the contraband gold. They were also proved to be members of smuggling racket under Customs law without any evidence adduced by them as to possession of the gold seized being imported lawfully. Appellant failed to prove his bona fide. Story of Abubacker was a false and a premeditated design to escape scrutiny of Customs. Even the story of exchanging Rajasthani make Jewellery was false without any evidence to that effect. No such jewellery were found with the appellant when the offending goods were found from his possession. His travel from Calcutta to Chennai using the ticket of K. Chandra by the Indian Airlines Flight No.0544 was proved to dispose the smuggled gold. That demonstrated his active, conscious and deliberate involvement in gold smuggling. 10. Successful recovery of the offending gold by investigation from the possession of appellant could neither detach him nor his accomplice form the smuggling. Such goods were without any proof of lawful import thereof. Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods were not lawfully imported, there is no scope at all for him to go out of the purview of section 123 of the Customs Act, 1962. Therefore, all the 12 gold bars and 10 gold biscuits were lawfully seized by Customs and were liable to absolute confiscation. 12. Penalty of confiscation is a penalty in rem, which is enforced against the goods. In such case, it is not necessary for the Customs authorities to prove that any particular person is concerned with their illicit importation or exportation. It is enough, if the Department furnishes, prima facie, proof of the offending goods being smuggled one. The second kind of penalty is one in personam, which is enforced against the person concerned in the smuggling of the goods. In such case, the Department has to prove further that the person proceeded against was concerned in the smuggling. 13. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Customs to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. Presumption of innocence is, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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