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2016 (5) TMI 554 - CESTAT CHENNAI

2016 (5) TMI 554 - CESTAT CHENNAI - TMI - Imposition of redemption fine and penalty - Confiscation of seized 2.5 kgs of gold of foreign markings - Appellant's statement recorded under coercion and undue influence - Appellant submitted that making false allegation Customs discarded the duty paid receipt produced by appellant. No enquiry was done by the Customs on this receipt but was simply ignored on baseless pleas. - Held that:- In the present case, the circumstantial evidence suggesting th .....

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her person from Calcutta. A prima facie case is proved against him. If his possession was innocent and lacked the requisite incriminating 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. A .....

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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, JUDICIAL MEMBER For the Appellant : Shri Arun Kumar Prasad, Adv. For the Respondent : Shri B.Balamurugan, AC (AR) ORDER Learned counsel Shri Arun Kumar Prasad appearing on beha .....

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gold through Air Customs at Mumbai paying Customs duty under Bombay Airport Customs Receipt No.000840, dated 20.04.1992 [Ref: copy of receipt at page no.1 of the paper book filed]. But that receipt was not accepted by the Customs in Chennai as proof of the gold so came to India while recovery of the gold was made from the possession of the appellant. No enquiry was made by Customs from Abubacker. When the gold purchased by the appellant came through Bombay Customs that cannot be said to be illi .....

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igation. 1.4 Appellant s claim was that the Commissioner (Appeals) having allowed redemption of the gold, there should not be imposition of unreasonable redemption fine of ₹ 15,00,000/-. Learned Commissioner (Appeals) took market value into consideration to determine redemption fine. That was also faulty because he took the price of gold as on 23.07.2015 instead of the data of possession thereof. 1.5 Appellant submitted that because of the false allegations of the Customs, the appellant fa .....

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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 .....

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ecovered and statement under section 108 of the Customs at, 1962 was recorded. That revealed that the ticket was in the name of K. Chandra. 2.2 Appellant had concealed the gold. That was recovered form his rectum. This also he confessed in his 108 statement and that remained unrebutted all through till his conviction. 2.3 Appellant s confession was that one Shri Sitaram from Calcutta had given him the gold to handover that in Chennai to one R.K. Verma. When such a story came out, investigation r .....

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self is a testimony of illicit import the gold. Therefore, the MO-1 to MO-3 were not returned to them. That was given custody to Customs. Therefore, they had to undergo rigorous imprisonment with penalty. 2.5 Revenue urged that learned Commissioner (Appeals) although made a mention of section 123 of the Customs Act, 1962 in his order, he failed to appreciate the implications thereof. Evidence of smuggling of gold came out in broad daylight due to recovery of the gold from possession of appellant .....

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ellant. Therefore, appellant was not at all entitled to redemption of the gold. Accordingly, Tribunal should order absolute confiscation of the gold as well as confirm penalty without granting any relief to the appellant. 3. Heard both sides and perused the records. Although adjudication 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 N .....

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ntity. 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 pieces and thrown in the roo .....

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n Room No.5 of Hotel Samrat, Chouringha, Calcutta before departing to Madras. He left for Madras by Indian Airlines Flight No. IC 544 using ticket in the name of K. Chandra under instruction of one Sitaram with the offending gold. He was directed by Sitaram to stay in Hotel Dasaprakash in Room No.58 upon his arrival in Chennai and to hand over the offending gold to one R.K. Verma, who shall visit him in that room. He also narrated the manner how he concealed the gold to bring to Madras for ultim .....

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Madras-79 having come from Delhi travelling by Tamil Nadu Express to collect the gold from Rajaram Johra for ultimate delivery to one Gopichand (Soni) Agarwal. A railway ticket bearing No.39301 showing his travel from New Delhi to Madras with sleeper charge ticket No.D561885 for ₹ 34/-was recovered from him. That was unrebutted. 6.2 R.K. Verma in his further statement dated 23.04.1992 under section 108 of the Customs Act, 1962 stated that he came from Delhi upon being asked by Rajaram Joh .....

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jaram 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 a .....

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he gold, they failed to explain whether the gold was lawfully imported into India. Therefore, they were arrested for the possession of the illicitly imported gold and were presented before the Magisterial court of law for their trial. 8.1 R.K. Verma and Gopichand Soni retracted their statement through their letters stating that they were under pressure and were forced to write the confessional statement. Such retractions were incredible and fabricated story without any truth. R.K. Verma stated i .....

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rned down finding no substance therein and ill-founded. Both of them were found to have been actively and consciously involved in the smuggling along with Rajaram Johra. 8.2 Rajaram Johra by his letter dated 30.06.1992 informed the Assistant Collector (Customs) that he is a goldsmith by profession and he came into contact with one Abubacker from Malappuram, of Kerala. Abubacker visited Dargah in Ajmer every year. He phoned him in the first week of April, 1992 and told him that he shall be arrivi .....

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credible evidence in support of such story. Abubacker was stranger to him. He neither provide any details about him nor proved the fabricated story of exchange of Jewellery against gold bar and gold biscuit. 9. On the aforesaid material facts, when counsel for the appellant only pleaded innocence of the appellant, investigation led cogent and credible evidence before the trial court followed by recovery of contraband gold resulting in conviction of the appellant with his accomplice. While Rajara .....

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f 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 posse .....

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gold form the appellant for disposal thereof on his arrival in Madras. Entire defence exercise was futile and pleas were baseless as well as fake. 11.1 Section 123 of the Customs Act, 1962 mandates that gold is notified goods. Burden of proof of lawful import lies on the person from whose possession such gold is seized in the event Customs believes that the gold was smuggled goods. For convenience of reading, the said section is reproduced below:- SECTION 123. Burden of proof in certain cases. - .....

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other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold, and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. 11.2 The gold as stated above were found to be contraband goods and customs believed that to be smuggled one when that carried foreign marking and no evidence of lawful import thereof was adduced before investigation, adjudicating .....

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nd 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 e .....

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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, no doubt, presumptio juris: but every day s practice shows that it may be successfully encountered by the recovery of the contraband goods possessed by the smuggler. 14. Department not only brought out direct evidence of possession of smuggled gold by appellant, even several circumstances of a determina .....

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him was not illegal, perverse or devoid of common sense, or contrary to rules of natural justice, there would be no warrant to disturb his findings. 15. Initial onus of proof on the Department can be sufficiently discharged by circumstantial evidence following the ratio laid down by the Apex Court in the case of in Issardas Daulat Rams case, (1962) Supp. (1) SCR 358. In the present case, the circumstantial evidence suggesting the inference that the goods were illicitly imported into India could .....

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