TMI Blog2022 (5) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... on the voluntary statement is not justified - further it is found from the records that the Revenue had entertained a doubt that the assessee-appellant had improperly imported gold into India. Section 11 of the Customs Act, 1962 deals with the power to prohibit importation or exportation of goods; (2) (f) thereunder prohibits uncontrolled import and export of gold or silver. Section 101 ibid. empowers the Revenue to search suspected persons in certain cases. It is for the assessee-appellant, who has canvassed to having retracted his statement recorded under Section 108 ibid., to explain before the Revenue authorities as to the source of the gold in question, including the names and addresses of its customers. The same would also apply to the half cut piece of gold bar with the marking Cambi, Suisse 100 gm Gold 999.9 , since the initial burden, within the meaning of Section 123 ibid., is always on the person from whose possession the gold, including the one with foreign marking, is seized, to prove that none of the seized gold was smuggled. The retraction statement does not deny the seizure of gold through the Mahazar and in the said retraction, he has clearly admitted, volu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Appellate Authority has, vide impugned order, dismissed the Department s appeal and partly allowed the assessees appeals by reducing the redemption fine and penalties. The Adjudicating Authority had inter alia ordered confiscation of the seized gold weighing 2.810 kgs. valued at Rs.91,95,725/-, had given an option to redeem the same under Section 125 of the Customs Act, 1962 on payment of fine of Rs.9,20,000/- along with payment of applicable duty on the above gold, apart from imposing penalty under Section 112 ibid. of Rs.10,00,000/- on Shri M.S. Alaudeen, Rs.2,00,000/- on Shri S. Nagoor Gani and Rs.1,00,000/- on Shri G. Umapathy. The First Appellate Authority modified the above by reducing the redemption fine to Rs.4,60,000/- and penalty under Section 112 ibid. to Rs.2,00,000/-, Rs.20,000/- and Rs.10,000/- respectively. 2. Brief facts leading to the filing of these appeals, as gathered from the arguments of the representatives of both sides, inter alia, are that:- (i) A specific intelligence was gathered that foreign origin gold were being smuggled into India by way of concealment, cleared through Anna International Airport and brought to the premises of Shri M.S. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative) for the Revenue (appellant in Customs Appeal Nos. 40244 to 40246 of 2020). 3.1 Learned Advocate for the assessees-appellants briefly contended, inter alia, that:- (i) Shri M.S. Alaudeen, one of the assessees-appellants herein, had taken a place for rent and was running lathe business of smelting and melting gold used melting furnace. (ii) Since a lot of referred customers wanted the services of this assessee-appellant only, he used to be in charge of all the business activities. (iii) A search was conducted on 12.12.2018 which resulted in seizure of seven ring shaped gold, three square shaped strip of gold and one half cut piece of 100 grams of gold bar (foreign marked) to an extent weighed 2.810 kgs. (iv) On the very same day, the said assessee was taken by the officers to their office, severely beaten, threatened and dictated to give statement. (v) He chose to retract, vide his communication dated 13.12.2018 i.e., the very next day, his statement made on 12.12.2018. (vi) A writ petition in W.P. No. 8527 of 2019 was filed for a direction seeking to return the seized gold. The Hon ble High Court vide Order dated 24.06.2019, while disposing of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levy of penalty under Section 112 ibid. 4.3 Insofar as the retraction referred to by the Learned Advocate for the assessees-appellants, he would submit that there is no specific retraction and hence, the same cannot be relied upon; but, however, there is no specific retraction insofar as the half cut piece of gold having foreign marking and hence, the same was required to be absolutely confiscated since the appellant has not discharged burden under Section 123 ibid. He further relied on decisions of various courts in support. 5. I have considered the rival contentions, have gone through the documents placed on record as well as the orders of lower authorities and have also gone through the judgements / orders relied upon by both the parties during the course of arguments, by which it is clear that judgements are available which are supporting the counter-stand of both the parties. This makes it clear that the applicability of the judgements would depend on the facts of each case and hence, it is essential that proper facts be brought on record in the first place, to apply the judgements. 6. I find force in the contentions of the Learned Advocate for the assessees-appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Learned Advocate for the assessees-appellants and the requirements of law, it is for the assessee-appellant, who has canvassed to having retracted his statement recorded under Section 108 ibid., to explain before the Revenue authorities as to the source of the gold in question, including the names and addresses of its customers. The same would also apply to the half cut piece of gold bar with the marking Cambi, Suisse 100 gm Gold 999.9 , since the initial burden, within the meaning of Section 123 ibid., is always on the person from whose possession the gold, including the one with foreign marking, is seized, to prove that none of the seized gold was smuggled. 8.4 The retraction statement does not deny the seizure of gold through the Mahazar and in the said retraction, he has clearly admitted, voluntarily, that the gold in question belonged to his customers. It is well-settled that when a retraction is made, then both the original statement as well as the retraction statement have to be looked into very carefully and hence, once a retraction is made, the burden is more on the appellant to place on record the identity of his customers since he had only admitted that the gold s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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