TMI Blog2023 (5) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... t embossed thereupon - He also admitted to have no documents for proving that he was legally possessing that quantity of gold in the form of several number of uneven pieces. These particular admissions are sufficient for investigating officers to raise a presumption under Section 114 of Evidence Act that the gold has been illegally imported and thus to invoke the reverse burden of proof i.e. the burden of proof that the gold recovered is not the smuggled on lies upon the appellant in. Otherwise also the statement as recorded under Section 108 of the Customs Act are admissible into evidence. Hon ble Supreme Court in the case of NARESH J. SUKHAWANI VERSUS UNION OF INDIA [ 1995 (11) TMI 106 - SUPREME COURT] held that the statement recorded under Section 108 of the Customs Act, 1962 made before the customs officers is not a statement recorded under Section 161 of Cr.PC., for customs officers not being the police officers. Therefore, the statement got recorded by customs officer is the material piece of evidence which can be used as substantive evidence connecting the deponent with the alleged contravention of the customs act. Question stands decided in favour of Revenue and it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heaper. Section 112(b) of the Act is wide enough to penalise even a person acquiring possession or in anyway dealing with the goods which he knows or has reason to believe are liable for confiscation under Section 111. Confiscation has already been upheld. Thus it is held that the appellant had rendered them liable for imposition of penalty. There are no infirmity in the findings of the adjudication authorities below while imposing penalty upon the appellant. The issue stands decided in favour of the Revenue and against the appellant - appeal dismissed. - Customs Appeal No. 30400 of 2022 [SM] - FINAL ORDER No. A/30092/2023 - Dated:- 2-5-2023 - DR. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. B. Seetha Ramaiah ,Consultant for the Appellant Mr. A. Rangadham, Authorized Representative for the Respondent ORDER The present appeal has been filed to assail the Order-in- Appeal bearing No. 003-22-23 dated 22.06.2022 vide which the order of absolute confiscation of two gold pieces of rectangular bar and one irregular shaped piece of gold of foreign origin weighing 1496.68 grams along with the Indian currency worth Rs.15,09,210/- as seized from the appellant has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently vide letter dated 06.10.2017, he retracted his earlier statement as was recorded under Section 108 of the Customs Act, 1962 (herein after called as the Act). In the said statement he mentioned to have purchased the impugned gold vide Invoice No. 4679 dated 28.06.2017 issued by M/s. Sai Durga Gold, Tiruvuru. in the name of M/s. Balaji Bullion Corporation, Sattenpalli. Tax invoices were also submitted. After recording the statements of the proprietor of M/s. Sai Durga Gold, Shri N.V.N. Kumar, In-charge of M/s. DP gold Pvt. Ltd., Shri Dinesh Kumar Jain that the department formed a prima facie opinion about the recovered gold to be of foreign origin and accordingly, invoked Section 123 of the Act. Appellant accepted the aforesaid letter of 06.10.2019 and the documents annexed therewith but could not produce any other evidence to prove the contrary. Resultantly, the Show Cause Notice No. 48/2017 dated 20.02.2018 was served upon the appellant proposing the confiscation of the gold and the currency recovered from him in terms of Section 111 and 121 of the Act respectively. Penalty under Section 112(b) of the Act was also proposed. The said proposal was initially confirmed vide Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted for the metal on his person to be remelted gold of foreign origin as being purchased without any bill. It was specifically mentioned that since the gold was illegallybrought into the country, hence was available at comparatively cheaper prices and that they both (the seller as well as buyer) were aware of this fact. It is further submitted that at the time of recording their initial statements and drawing the Panchanama, appellant had not informed about the source of their purchase. It was subsequently vide their respective retraction, the bills of purchase were submitted, however, the seller denied the gold seized by DRI to be the same gold as was sold by him vide the bill produced. It is submitted that there is sufficient circumstantial evidence on record which points to the fact that the gold recovered was the smuggled gold. The circumstances were enough to give reasonable belief to the investigating DRI Officers to invoke Section 123 of the Customs Act, 1962. Impressing upon no infirmity in the order of confiscating the said gold and for imposing penalty upon all the appellant herein, learned DR has requested for the appealin hand to be dismissed. Reliance is placed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the gold in his possession was actually the gold of foreign origin, however, it got remelted for erasing the foreign markings but 99.9% purity mark was still got embossed thereupon. He also admitted to have no documents for proving that he was legally possessing that quantity of gold in the form of several number of uneven pieces. These particular admissions, to my opinion, are sufficient for investigating officers to raise a presumption under Section 114 of Evidence Act that the gold has been illegally imported and thus to invoke the reverse burden of proof i.e. the burden of proof that the gold recovered is not the smuggled on lies upon the appellant in. I draw my support from the decision of Hon ble Apex Court in the case of Labhchand Dhanpat Singh Jain Vs. State of Maharashtra, AIR 1975 SC 182, wherein the Hon ble Apex Court has held as follows: The appellant admitted, in his statement under Section 108 of the Act that transporting of these pieces of gold was an offence. If the gold had been legally imported before 1948 it could not be an offence to carry it. The appellant had not proved who Pannalal, the person who was alleged by him to have given him the gold to carry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and secondly the proprietor of the seller M/s. Sai Durga Gold had mentioned that the said Invoice No. 4679 dated 28.06.2017 was for a quantity of 273.660 grams and for a quantity of 1230.490 grams and the quantity was sold to M/s. Balaji Bullion Cooperation. The gold recovered from the appellant has no resemblance from the weighment and appearance of the gold as mentioned in the invoice nor the appellant could produce any evidence of his connection with M/s. Balaji Bullion Cooperation. 7.1 Shri N.V.N. Kumar had also stated that the nature of gold sold to M/s. Balaji Bullion Cooperation is 100 grams gold biscuits and a total of 15 gold pieces and a cut piece of 4.150 grams which was originally sold by MMTC having their trade mark. Apparently and admittedly the recovered gold is not in the form of 100 grams gold biscuit nor is of MMTC brand. The recovered gold, therefore, is not proved to be the same gold as was purchased vide the invoice submitted by the appellant. Similarly, the tax invoices are also with respect to the purchase of gold coins whereas the recovered gold is rectangular bar and irregular shapes. There is no evidence produced on record that those gold coins wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the duty is paid, they cannot be kept concealed. In case of prohibited goods, if the conditions subject to which the goods can be imported are fulfilled, they cease to be prohibited goods and they can be carried openly or concealed as one pleases. In case of gold during the period in question, if gold had been imported by a designated authority, it would not have been a prohibited good (since the condition of import was fulfilled) and if duty has also been paid, it would not have been a dutiable good. Thereafter, if the designated authority, in turn, sold the gold to anyone and such person carried them, concealed in a secret jacket or false bottom of a suitcase or shoes, section 111(i) would not apply. However, In this case, there is no evidence that the goods in question were imported by the designated organizations. Therefore, the gold is prohibited good and since it has been found concealed in the shoes of Deepak and in the secret pockets of his back pack, Section 111(i) of the Act applies to hold that the gold recovered from appellant is liable for confiscation. 7.6 With respect to the Indian currency in possession of the appellant, the appellant, under the theory of reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of facts, evidences and circumstances, it is clear that the appellant in this case had acquired possession of such gold which they could not prove to be of India origin nor the valid possession could be proved. There has been no denial that appellant was purchasing the gold at the cheaper rate. There is rather an acknowledgement that gold was smuggled one hence was cheaper. Section 112(b) of the Act is wide enough to penalise even a person acquiring possession or in anyway dealing with the goods which he knows or has reason to believe are liable for confiscation under Section 111. Confiscation has already been upheld. Thus it is held that the appellant had rendered them liable for imposition of penalty. I do not find any infirmity in the findings of the adjudication authorities below while imposing penalty upon the appellant. 8.1 Such a narrow construction of this expression, in my opinion, will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. As was pointed out by the Hon ble Apex Courturt in the case of Balkrishna Chhaganlal Soni v. State of West Bengal (1974) 3 SCC 567: AIR 1974 SC 120, rule 126-P(2)(i) (present Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
