TMI Blog2023 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... an old jewellery purchased in exchange of cash during the long period of time and due and the stock of gold was melted through the said old jewellery and converted into gold bars. The said fact has not been verified by the Revenue. As the noticees have explained the source of procurement of gold, which is not denied by the Revenue, further having no mark on the gold and purity of gold is also not in conformity of the foreign gold, the benefit of doubt goes in favour of the notices. As the Noticee No.(1), (2) (3) have submitted the smuggled/procured gold in question is made out of old jewellery purchased in cash and the said fact has not been denied by the Revenue by any cogent evidence, therefore, it is held that the gold in question is not liable for confiscation and hence, the same is required to be released - Revenue has failed to establish the fact that the cash recovered from the Noticee No.(1) (2) (3) are the sale proceeds of the smuggled gold, therefore, the cash seized cannot be confiscated - No penalties are imposable on the Noticee No.(1), (2) (3). The proceedings initiated by the impugned show-cause notices are set aside - Appeal allowed - decided in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10500.800gms. valued at Rs.3,15,02,400/-, Indian currency Rs.69,99,500/- and some other things from the premises at 17, Pageyapatty, Kolkata-700007. In addition, Rs.15,00,000/- was also recovered and seized from the possession of one person named Shri Abhishek Kumar Agarwal who was found in the said premises and has got no relation with the Noticees. (c ) Indian Currency Rs.51,00,000/- from the residence of Noticee No. 1 at Ankur building, flat no.12D, Lord Sinha Road, Kolkata. 5. The said 11 pieces gold bars, 9 nos. of gold coins and 509.100gms of silver granules were seized under section 110 of the Customs Act 1962 on the reasons to believe that those were of foreign origin and Smuggled into the country rendering them liable to confiscation under the provisions of the said Act. The Indian currency amounting to Rs.1,59,76,500/- was seized on the reasons to believe that the same was the sale proceeds of smuggled goods and as such, liable to confiscation under section 121 Customs Act 1962. 6. Statements of Noticees were recorded under threat and coercion on 6-08-2028 and 7-08-2018. Thereafter all the Noticees were arrested. The Noticee No.1 vide prisoner petition dated 13.08. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned. 10. With regard to Noticee No.5 Noticee No.6, the ld.Commissioner (Appeals) dropped the proceedings and refrained from imposing penalty on them. Aggrieved from the said dropping proceedings against Noticee No.5 Noticee No.6, Revenue is in appeal. 11. The Ld.Counsel for Noticee Nos.1,2 3, submits as under : 12. Department failed to prove that the gold is of foreign origin:- There is no foreign marking in the seized gold and admittedly the purity of gold of foreign origin never below 99.99% whereas, as per chemical examiner, purity of seized gold bars certified to be 99.5% to 99.6%, hence the gold has to be released. In this context reliance is placed upon, inter alia, the following decisions: (i) NAND KISHORE SUMANI Vs. COMMR. OF CUS., C. EX. S.T., SILIGURI, 2016 (333) E.L.T. 448 (Tri. Cal) Confiscation - Gold bars - Smuggling - Evidence - Ten gold bars not having foreign markings seized from a vehicle outside Customs premises allegedly smuggled from Bangladesh - No evidence of seized gold bars being of foreign origin - Weight of foreign origin gold bars is standard whereas none of the gold bars having identical weights or carrying any foreign markin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said statements are dictated, as may be evident from the statements dated 6th 7th August 2018 of the Noticee vis- -vis the words and language of the Panchnama dated 6.8.2018 in respect of 2nd floor of 17 Pageyapatty, Kolkata, that the statement dated 6.8.18 is simply an affirmation obtained from the Noticee No. 2 and 3, in the same words and language as mentioned on the said Panchnama dt 6.8.2018. There is no difference in both the script typed on the said Panchnama and on the statement dated 6.8.18. The same is simple cut and paste of the script of said Panchnama dt 6.8.18 in the statement of the Noticee No. 3, typed on 6.8.2018. Hence the statement cannot be said to be voluntary when the same is in the words of DRI officer recording/typing the statement of the Panchas. The Noticee No. 3 and the Panchas cannot use the some words, as is evident here. Hence, no reliance could be made on such statement which is typed and recorded in the words of the DRI officer. Otherwise also the statement of coaccused cannot be relied upon without other corroborative evidence. In this context reliance is placed upon, inter alia, the following decisions:- (i) COLLECTOR OF CUSTOMS, NEW DELHI Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of foreign origin. 17. We take note of the fact that during the course of investigation, it is the fact on record that there is no mark found on the gold seized. Moreover, purity of gold was also found 99.5% and not 99.9%. Further, during the course of investigation, the Noticee No.(1) has made a statement stating that the source of procurement of the said gold is made from an old jewellery purchased in exchange of cash during the long period of time and due and the stock of gold was melted through the said old jewellery and converted into gold bars. The said fact has not been verified by the Revenue. In such circumstances, The Tribunal in the case of Ram Nath Sah Vs. Commissioner of Customs, Patna reported in 2007 (219) ELT 546 (Tri.-Kolkata) has observed as under : 4. After hearing both sides and perusal of the case records, I find that the seizure report does not indicate any foreign marking on the gold. The purity is also not of 999 generally found with the foreign origin gold. The seizure report also does not indicate the individual weight of the gold pieces. As such, this is a case where the benefit of doubt requires to be extended to the appellants as there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said two gold bars were smuggled in the two countries. Therefore, the presumption regarding the smuggled nature of seized gold under Section 123 of the Customs Act, is not invocable. 19. In view of the ratio of law laid down by the Hon ble Supreme Court in the case of Gyan Chand v. State of Punjab - 1983 (13) E.L.T. 1365 (S.C.), neither seized gold could be legally confiscated under Section 111(b) of the Customs Act, 1962 nor any penalty could be imposed on the appellant. Accordingly, the impugned orders are set aside to the extent of seizure of gold bar and penalty against Shri Ram Naresh Chaurasia. Appeal is allowed with consequential relief to the appellant. 19. Further, in the case of Jay Nath Shaw Vs.Commissioner of Customs, Patna reported in 2007 (218) ELT 710 (Tri.-Kolkata), this Tribunal has observed as under : 4. After hearing both sides and on perusal of the case records, I find that the weight of the four pieces of gold bars are respectively 148.5 gms., 106.8 gms., 104.3 gms., and 136.2 gms. The seizure memo records the marks on these gold bars as symbol of tiger head R-R Sidhnath in Hindi. , The purity is found to be around 995 considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided by this Bench. Following observations have been made by this Bench in Paras 12, 13 14 of this case law : 12. The gold biscuits seized from Shri Awadesh Kr. Thakur have been confiscated by the adjudicating authority after rejecting the documentary evidence produced by the appellants showing the legal purchase of the same from M/s. Chauhan Zevares Pvt. Ltd. and by referring to certain discrepancy in the said document of the seized gold biscuits. However, I find that the discrepancies referred to by the adjudicating authority are not real inasmuch as he has held that whereas the sale voucher shows the goods to be T.T. Bars , the seized gold is biscuit. He has thus observed that such descriptive variation between the biscuits and the bars raises a reasonable doubt regarding the genuineness of the transaction. The appellants have contended that biscuits and the bars are synonymous terms used by the persons dealing in gold and are interchangeable T.T. Bars represent ten tola bars which are also referred to as biscuits. The Commissioner in his impugned Order has nowhere observed as to what is the difference between a biscuit and a bar. Similarly, as regards weight, I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged when the appellants produced the sale/purchase vouchers showing the sale of the goods from the gold dealer who has admitted having sold the same. In the absence of any requirement of law requiring the gold dealers enjoying the sale/purchase of foreign-marked gold in India, to indicate the brand names of the same in the sale/purchase vouchers, the sale documents produced by the appellants cannot be dismissed on the said ground. In the instant case also, we find that the entire chain of sequence starting from importation of gold biscuits of M/s. Kan Karan Impex, its sale to M/s. Chauhan Zevares and further sale to Shri Kapildeo Prasad, is established. As such, taking the said factor into accounts, I am of the view that the onus cast upon the appellants under the provisions of Section 123 stands fully discharged. The confiscation of the gold biscuits is not called for. Accordingly, I set aside the same. 15. Inasmuch as the confiscation of the gold biscuits has been set aside, the confiscation of the truck is not called for. For the similar reasons, there is no warrant for imposition of penalties upon the various persons. The same is, accordingly, set aside. 7.1 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrencies seized from the Noticee No.(1),(2) (3), were not established by the Revenue with corroborative evidence to show that the same are the sale proceeds of smuggled gold. In that circumstances, reliance is being placed on the following decisions : (i) Ramchandra Vs. Collector of Customs : 1992 (60) ELT 277 (T) ; (ii) Collector of Customs, New Delhi Vs. Sudhir Electronics : 2000 (123) ELT 1054 (T). 24. We further take note of the fact that the cases relied upon by the Revenue has been considered by the Tribunal in the case of Commissioner of Customs (Preventive) Vs. Shri Amit Jalan Shri Ashok Kumar Jalan vide Tribunal s Final Order No.75032-75033/2023 dated 6th February, 2023 wherein this Tribunal observed as under : 8. On merits also, I find that except the statements recorded by the DRI dated 10.06.2019 and 11.06.2019 which were retracted by the Respondents on the first opportunity available on 12.06.2019 before the Ld.CMM, Kolkata, no other corroborative evidence has been brought on record. In that circumstances penalty on the Respondents are not imposable. The case laws relied upon by the Ld.Authorized Representative are not applicable to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of the co-accused in that case inculpates himself as well as the petitioner. In the instant case, the co-accused shifted the entire guilt on the appellants. In view thereof, the personal penalties imposed on the appellants are not warranted. Therefore, I have no hesitation in holding that the personal penalties are required to be set aside. Accordingly, I do so. 10. Further, in the case of Sachin Kumar (supra), the Tribunal held as under:- 6. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant Sachin Kumar was a transport agent who arranged the truck for the exporter and appellant No. (2) Venugopal acted as a CHA for clearance of the goods at the NMPT, Mangalore and appellant No. (3) Ravichandra arranged the CHA and the container. Further, I find that the goods were stuffed at the KSDL factory, Bangalore in the presence of Mr. Hashim, Director of the exporter company and Superintendent of Central Excise and thereafter it was sent to Mangalore and from Mangalore it was exported. Subsequently, DRI got intelligence that the exported goods were falsely declared as Mysore Detergent Cakes by illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion above, I am of the considered view that the impugned order is not sustainable in law and therefore I set aside the same by allowing the appeals of the appellants. Penalties imposed on the appellants are also set aside. 11. Further, in the case of Kisan Ratan Singh (supra), The Hon ble Bambay High Court held as under :- 7. According to prosecution, the statements of both accused were voluntarily and correctly recorded without use of any force or inducement. The Trial Court after considering the evidence recorded and the facts and circumstances of the case, has held that the statements recorded under Section 108 have not been independently corroborated. The Trial Court has held that without an independent corroboration or without any evidence the statements recorded of accused under Section 108 has no evidentiary value, more so when there has been a retraction. I am in agreement with the conclusion arrived at by the Trial Court. 8. Admittedly, panch witness of the panchnama recorded on 4th February, 1991, when the gold and Indian and Foreign currencies were allegedly seized, have not testified. Even the persons, who typed the panchnama, and PW-1 says it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 delivered on 29-11-2019 [2020 (371) E.L.T. 642 (Bom.)]. Paragraph 8 of Malki Singh s judgment reads as under : 8. It is no doubt true that under section 104 of the Customs Act, 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under sections 135 or 135A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the Customs Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Customs Officers are not police officers and resultantly, a statement made to the Customs Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled :- without any independent corroboration it cannot sustain a conviction and retracted confession may form basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy. The Court is duty bound to examine whether the statement referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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