TMI Blog2020 (10) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... rception and in the voluntary statements during investigation. He has also stated that he does not have any other business except the grocery shop. But his son Shri Debasish Paul stated that Shri Debraj Paul used to do export import business also and has a valid IEC number. It is found that only after issuance of the Show Cause Notice Shri Nirmalendu Paul, appellant No. 1. changed his version which appears to be an afterthought. During the personal hearing his Advocate claimed that the seized gold were actually recovered from a bag kept under the seat of the bus which was being occupied by Shri Nirmalendu Paul. His advocate also sought for cross examination of the independent witnesses present of the time of the seizure and that his statements were taken under threat and duress. It is found the appellant no. 1 had never altered his statements and until the end of the investigation he maintained that the gold bars were acquired by him on behalf of the appellant no. 2. The confiscation of the seized goods and imposition of personal penalties are justified - quantum of penalty reduced - Appeal allowed in part. - Customs Appeal Nos. 75610-75611 of 2018 - Final Order No. 7537 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree thousand) on successful delivery of the goods at the destination. (viii) He was directed to carry the recovered gold bars to Lanka in Assam. He was told that someone would come to receive the gold from him after making contact over cell phone. He did not know the recipient. He did not know the contact number of that person also. He claimed that his mobile number was perhaps given to that unknown person who would have contacted him once he had reached Lanka, Assam. (ix) He was not the owner of the seized contraband gold biscuits. (x) He was intercepted by the DRI officers from the bus bearing Registration No. AS-02AC-6402 of Sreema Travels near Cachar College, Silchar on 14.06.2016 at around 08:30 hrs. in the presence of independent witnesses while he was on his way to Lanka from Silchar. (xi) On interception, he was taken to the DRI Office, Silchar. (xii) 9 (nine) numbers of contraband gold biscuits were recovered from his personal possession at DRI Office, Silchar in the presence of independent witnesses. All of the 9 (nine) nos. of recovered contraband gold biscuits bore foreign markings. (xiii) The gold bars being carried by him were wrapped in brown color ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erintendent, Customs Preventive), Dharmanagar which did not yield any result with regard to recovery of any incriminating article or document. Thereafter, the voluntary statement of Shri Debaraj Chandra Paul, S/o Late hari Narayan Paul, Pragati Road, Nayapara, P.O P. S. Dharmanagar, Dist. North Tripura was recorded on 16.08.2016, under summons proceedings, under Section 108 of the Customs Act, 1962 wherein he inter alia stated that:- (i) He did not know Sri Nirmalendu Paul and that he did not have any relationship with him. (ii) On the day of searches conducted at his residence and business premises on 30.06.2016, he was proceeding to Silchar. But, due to poor road conditions, the vehicle he was traveling in got stranded. Finally he had to cancel the trip and returned home in the afternoon. (iii) This grocery shop under the name M/s Satyanarayan Bhandar at Vivekananda Road (formerly known as Kurti Road) was his sole means of livelihood and that his annual income is around ₹ 1,80,000/- to ₹ 2,00,000/- (iv) The land of his shop was registered in the name of his wife Smt. Runu Rani Paul. (v) His IT PAN was ADAPP4782B. (vi) He maintained one Savings Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biscuits. 10. Analysis of the Call Details Records (CDR) in respect of Mobile number 9678353415, as shown in the table below, revealed that the user of that mobile was in frequent contact with users of the following two numbers:-i) 8258835183 ii) 9954128754. CDR of Mobile No. 9678353415 Calling No. Called No. Date Time Duration (in seconds) 9678353415 8258835183 12.06.2016 14.09.51 45 9678353415 9954128754 12.06.2016 19.03.17 12 9954128754 9678353415 13.06.2016 16.57.43 49 8258835183 9678353415 13.06.2016 17.48.50 17 9678353415 9954128754 13.06.2016 18.53.37 72 9678353415 8258835183 13.06.2016 20.03.13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1862 where he, inter alia, stated that :- (i) He did not know anyone by the name Nirmalendu Paul or NinkuPaul. Also, he did not know anyone by the name Sujit Paul as well. (ii) His Mobile No. was 8416043096. (iii) The Mobile No. 9862937632 though registered in his name was actually being used by his father Sri Debraj Paul for the last 2/3 years. The SIM was probably taken in 2008-09. (iv) Apart from the grocery shop, his father used to do Import- Export business through Raghna Bazar LCS. (v) He did not know anything about this case. 14. Sri Debraj Paul, S/o (L) Hari Narayan Paul was again summoned to DRI Office, Silchar on 20.09.2016 for further examination and his statement was recorded under Section 108 of the Custom Act, 1962, where he, interalia, stated that - i) He is a businessman by profession. He has a grocery shop at Vivekananda Road, Dharmanagar. He does not have any other source of income. ii) His monthly income is around 15-16,000/-. iii) He never came across anyone by the name Nirmalendu Paul or Ninku Paul. iv) His mobile number was 9862937672, the SIM of which was registered in the name of his son Sri Debasish Paul. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeal before the Commissioner (Appeals). The Ld. Commissioner (Appeals) vide order in Appeal No. 19/CUS(A)/GHY/17 dated 23.11.2017 upheld the Order-in-Original and rejected both the appeals. The present appeals have been filed by the Appellants against the Order-in-Appeal No. 19/CUS(A)/GHY/17 dated 23.11.2017 passed by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati. 18. Heard both sides and perused the appeal records. 19. It has been observed that there was no controversy regarding recovery of gold and both the Appellants have not claimed ownership of the seized gold. No other third party also claimed the impugned seized gold. The seizure formalities were observed in the presence of two independent witnesses. The Appellants preferred appeals only against the imposition of penalty on them. 20. In the case of Shri Nirmalendu Paul, the circumstantial evidence produced by the Department shows that he was caught with the seized gold bars. In his statement under Section 108 of Customs Act, 1962 given on 14.06.2016, and subsequently on 22.08.2016 during investigation, he has confessed that he was carrying the seized gold in his person and that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. I find that the appellant had ample scope of retracting from the statement dated 14.06.2016 in his subsequent voluntary statements or by any other means e. g. at the time when he was produced before the Chief Judicial Magistrate after his arrest or at any time before issuance of the SCN. I, therefore find no substance in the allegation of threat by the DRI officers in recording the statement dated 14.06.2016 which appears to be false, fabricated and without any basis. (iii) Regarding the plea of the appellant that the adjudicating authority did not allow cross examination of the witnesses and his reliance on the case laws, I find that the case laws relied upon by t he appellant are not applicable in the instant case. In the case laws relied upon by the appellant the facts were totally different from the facts of this case. In the relied upon cases the persons were booked/charged only on the basis of the statements of some third persons or of the co accused. Accordingly, their cross examination was felt necessary as there was no other corroborative evidence. However in the instant case the witnesses were only the panchas they had simply recorded the events of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help him as in the relied upon cases there were no corroborative evidence against the accused except the statements of other accused whereas in the instant case the call data records of his Mobile and the mobile of appellant no. 1 clearly established that they were in touch either directly or indirectly through other persons. The appellant no. 2 has further argued that the statements of the appellant no. 1 are totally incohesive, inconsistent and misleading. In this regard I find that the appellant no. 1 had never altered his statements and until the end of the investigation he maintained that the gold bars were acquired by him on behalf of the appellant no. 2. 25. In view of the foregoing, I hold that the confiscation of the seized goods and imposition of personal penalties are justified. However, considering the facts and circumstances of the case, I find that the penalties are excessive in nature. Therefore, I reduce the quantum of personal penalty of Shri Nirmalendu Paul to ₹ 10,000/- and Shri Debraj Paul to ₹ 50,000/-. 26. In view of the above, the appeal in disposed of as follows:- (i) The absolute confiscation of seized goods is upheld. (ii) Personal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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