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2016 (5) TMI 554

hat 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 the inference that the goods were illicitly imported into India could not be ruled out for no substantial evidence adduced to prove legal import of the offending goods. He got fullest opportunity to rebut against the alleged acquisition of the offending gold. But, he failed. The effect of the material facts being exclusively or especially within the knowledge of the smuggler, Customs proved its case very successfully. It is a proved case of Customs that the appellant travelled using ticket of another 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. - T .....

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was dealer of gold jewellery. So, credit worthiness of the appellant could not came to record since appellants income-tax status could not be placed before investigation. 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 faced criminal trial in UOCC NO.11/1996 resulting in conviction by an order dated 07.06.05. Along with the appellant, others who were connected with the gold i.e., Shri Gopichand Agarwal and Shri R.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 .....

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aylight due to recovery of the gold from possession of appellant. The gold carried foreign markings and there was no evidence of import thereof as well as for no lawful possession of the same, that was rightly seized and confiscated. Therefore, learned Commissioner (Appeals) should not have exercised power under section 125 of the Customs Act, 1962 to grant redemption without burden of proof discharged by appellant under section 123 of Customs Act, 1996 as to lawful import. Trial court in the criminal proceeding held that the gold was not property of the appellant. 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 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 we .....

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avelling 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 Johra to meet him in Chennai. He was staying in Room No.225, Hotel Mahashakti International, Madras and contacted Rajaram Johra (appellant) in Hotel Dasaprakash to receive all the 12 gold bars and 10 gold biscuits from him for ultimate delivery to Gopichand (Soni) Agarwal at No.24, Kasi Chetty Street, Madras. He also received a phone call from Calcutta form a person (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 acr .....

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ani design. Rajaram told him that since he had urgent work in Calcutta he would meet him (Abubacker) in Madras while Abubacker was on his way to Kerala and would take gold bars as well as gold biscuits from him in exchange of the Rajasthani design gold ornaments. Such fabricated story failed to speak truth when the appellant miserably failed to bring cogent and 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 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 .....

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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 authority as well as the Trial court. Appellant along with the accomplices miserably failed before the Trial court to succeed and their trial ended in conviction with no return of the gold to them. The MO-1, 2 & 3 in that case which were the offending gold in the present appeal were ordered by the Magistrate to be returned to Customs. When cogent and credible evidence came to the surface demonstrating that the appellant was in possession of the contraband gold with foreign marking thereon and 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 pa .....

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ry successfully. 16. It is a proved case of Customs that the appellant travelled using ticket of another 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. 17. In view of the aforesaid findings and analysis of evidence, 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 co .....

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