TMI Blog2020 (3) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act not being a notified item. However, by virtue of Section 121 of the Act, it is still liable to be confiscated provided it is as a result of sale proceeds of smuggled goods. In such a situation, the presumption contained in Section 123 of the Act would not be available to the Revenue which can be relied upon. Even though the provisions of the Evidence Act, 1872 (In short, the 1872 Act) are not applicable to proceedings under the Act, yet the broad principles and rule of evidence contained in Section 101 of the 1872 Act regarding Burden of proof would place the initial burden on the Department to establish by producing material evidence that the Indian currency or the asset sought to be confiscated was a result of sale proceeds of smuggled goods. In the present case, the appellant from whose possession cash of ₹ 8,23,100/- was seized had by preponderance of evidence shown that partly the amount was for the purpose of discharging the loan which was taken by him from his father-in-law - In the absence of any material to substantiate the allegation of the Revenue, the Additional Commissioner of Customs (Preventive), the Commissioner (Appeals) and the CESTAT were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh currency taka 3,32,335/- valued at ₹ 2,32,635/- under Section 111(b) and (d) of the Act. Besides, confiscation of Indian currency amounting to ₹ 8,23,100/- was also seized under Section 121 of the Act, penalty of ₹ 50,000/- was imposed on the appellant and ₹ 25,000/- on the father-in-law of the appellant under Section 112(b)(i) of the Act. 3. Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals) which was rejected vide order dated 31-5-2016 (Annexure-H). Further the Tribunal upheld the Order-in-Original and the order of Commissioner (Appeals) dismissing the appeal of the appellant on 28-4-2017 (Annexure-J). 4. The appellant claimed that the appeal raised the following substantial questions of law : (i) Whether on the facts and in the circumstances of the case, Learned Tribunal has committed substantial error of law, while approving the order of confiscation of Indian currency ₹ 8,23,100/- under Section 121 of the Customs Act, 1962, passed by the Additional Commissioner of Customs (Preventive) N.E.R., Shillong without any cogent evidence against the appellant. Said Indian currency was seized on a reasonable be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the appellant had taken a loan of ₹ 5,50,000/- in cash on 8-2-2012 from his father-in-law Shri Sunil Kumar Roy for expansion of his stationery business. The seized money was partly for the re-payment of the said loan. It was then urged that the amount which was an Indian currency belonged to the appellant and was his accounted money. To substantiate the claim, Learned Counsel referred to the statement of the appellant recorded by the Superintendent of Customs (Preventive) Force Sonamura Sepahijala on 29-9-2014. 9. It was contended that in the statement recorded on 29-9-2014 relating to Indian currency of ₹ 8,23,100/-, there was no admission by the appellant that it was illicit and resulted from dealings in Bangladeshi currency. However, with regard to seizure of Bangladeshi currency taka 3,32,335/- valued at ₹ 2,32,635/- is concerned, the statement recorded by the Department on that day was as per the dictation of the authorities. The investigating authorities had compelled the appellant to subscribe the statement to the questions, therefore, the appellant who is not well conversant with the English language did not understand what he was subscribin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct under a reasonable belief that they were smuggled goods, the burden of establishing that they were not smuggled goods, shall lie upon the person from whose possession the goods were seized. Sub-section (2) has applicability insofar as gold and manufactures thereof are concerned and to watches as well. However, the Central Government has been empowered to extend its applicability to any other class of goods by issuance of notification in the Official Gazette in that behalf. 14. The Indian currency seized in the present case falls outside the ambit of Section 123 of the Act not being a notified item. However, by virtue of Section 121 of the Act, it is still liable to be confiscated provided it is as a result of sale proceeds of smuggled goods. In such a situation, the presumption contained in Section 123 of the Act would not be available to the Revenue which can be relied upon. Even though the provisions of the Evidence Act, 1872 (In short, the 1872 Act) are not applicable to proceedings under the Act, yet the broad principles and rule of evidence contained in Section 101 of the 1872 Act regarding Burden of proof would place the initial burden on the Department to establish b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay related to suggested Bangladesh currency illegally imported. I opened M/s. Mousumi Varieties for carrying on trade/Business in groceries, stationery, gift items under License No. 10147, dated 1-8-2012 issued by Sonamura Nagar Panchayat read with Registration Certificate No. SNM/18435, dated 9-7-2012 issued by the Registering Authority. During that period I took loan ₹ 5,50,000 from my father-in-law Sri Sunil Kumar Roy son of (L) Ramoni Mohan Roy, Hospital Road Ward No. 11, Sonamura, a retired Govt. servant of Central Water Commissions for my business purpose. Condition was that I am to repay the loan amount within 3 years. Accordingly, I started saving from my business for repaying the same. The rest payment towards furniture/gift items and to pay sometimes weekly/fortnight/monthly to the plastic shops, namely :- (1) National Goolbazar Agartala. (2) J.C. Group deals in plastic Agartala. (3) Super Star in Agartala. Balance amount was for my day to day livelihood expenditure. 19. Further statement of Shri Sunil Kumar Roy, father-in-law of the appellant recorded on 7-10-2014 was also relied wherein, he had submitted as under : 13. It is very ..... X X X X Extracts X X X X X X X X Extracts X X X X
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