TMI Blog2023 (7) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... ness residential premises was smuggled. There are catena of decisions that have consistently held that retracted statements cannot be the sole basis for action under the Customs Act without any independent corroborative evidence. In the instant case, the Appellate authority has rightly held in the impugned order that in view of the above, any conclusion that the seized gold, gold coins and jewellery which was not released and which has been subsequently confiscated were smuggled into India or made from the smuggled gold, on the basis of the statements of the appellant dated 27.04.2017, 28.04.2017 and 29.04.2017 is not sustainable . In the light of several decisions which have also been relied upon by the Commissioner (Appeals) in the impugned order, it is difficult to accept the contention of the department that the statements were tendered voluntarily by the appellant and its subsequent retraction is a mere afterthought. To attract Section 123, the goods must be smuggled goods. The term smuggled goods means goods of foreign origin and imported from abroad. In the present case, there is no dispute that the goods with foreign marking are of foreign origin. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was set-aside, and coins bearing 22 ct weighing 807.29 grams was confiscated and coins bearing the ISO mark of 4690.37 grams was set aside. The penalty was proportionately reduced. The Department filed an appeal against the order releasing the confiscated coins, gold bullion and jewellery whereas Shri Rajesh Bhola (hereinafter referred to as the appellant) has filed an appeal against the confirmation of confiscation of remaining part of the consignment. 2. The brief facts of the case are that information was received that M/s Bhola Jewelmart Pvt Ltd., was engaged in the manufacture of gold coins, gold jewellery and in trading of the same, from their premises situated in Karol bagh, New Delhi. It was gathered that Shri Rajesh Bhola, Director of the company was engaged in the illegal procurement of smuggled gold coins of foreign-made markings of King Edward and Elizabeth etc. Acting on this information searches were conducted at the shop/office premises. Certain documents and gold coins/bars including those having foreign marking and gold jewellery were detained for further investigation. Searches were also conducted at the residential premises of the Director and gold bars having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 123 of the Customs Act, 1962 should not have been invoked and the onus remains on Revenue to establish that the evidence is not admissible. He further went on to state that mere foreign marking on the gold is the proof of it being smuggled. He further submitted that it is well known fact that import of gold is freely allowed and presently it is allowed through nominated agencies as also in baggage up to certain limit. Therefore, a conclusion regarding the smuggled nature of the gold upon foreign marking is erroneous. He relied on the decisions pronounced in the following cases: 1. Hari Prasad Chhapola vs UoI(2002-142-ELT- 534-Ori) 2. Nand Kishore Suman Vs Commr of Cus, C.Ex amp; ST, Siliguri (2016-333-ELT- 448-Tri- Kol 3. Jitender Pawar Vs Commr of Cus, Raipur 2003- 156-ELT 662-Tri-Del. 5. The learned Counsel also submitted that as the appellant had already explained that the bullion was part of ancestral gold and was duly declared in VDIS and Wealth Tax Returns and the revenue has failed to discharge the said onus to prove that the same was smuggled. He went on to state that the coins as confiscated were manufactured by the appellant and were to be sent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant. The appellant did not express any objection to the statements dated 27.04. 2017, 28.04.2017 and 29. 04. 2017 tendered by him. The retraction statement filed by the appellant indicates clearly that the same was generic and limited to production of documents regarding the impugned goods. Hence there is no evidence brought on record that the appellant was forced or coerced to give confessional statements. He relied on catina of decisions in this regard. He submitted that in case of Mukesh Shah vs Commissioner of Customs(Prev), W.B [2014(312)ELT 539(Tri-Kolkata)] Tribunal had held as follows: 6. The principle of law on the validity and reliability of is now well settled. No doubt the retraction of the statement diminishes evidentiary value of confessional statements but one need to look for corroboration . In the present case and analysis of the statement dated 3.6.1987, it is clear that it is not a confessional statement admitting to the act of smuggling of gold coins, information had been given disclosing the source of its licit procurement. The said information was given by the appellant in discharge of the burden possession of goods of foreign origin notified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily business of manufacture of gold coins, jewellery and trading of the same. We now address the substantive issues that are placed for our consideration as per the two appeals: i. Whether the Commissioner (Appeals) had erred in releasing certain quantity of gold bullion/coins/jewellery to the appellant, based on the statements of the Appellant tendered under the Customs Act, 1962? ii. Whether the Commissioner had erred in upholding the confiscation of foreign marked gold bullion /coins ? 9. In order to consider the two issues, it would be appropriate to recall in gist, the impugned order. We note that the Commissioner Appeals has observed that despite various confessional statements of the Appellant, substantial quantity of gold, gold coins and jewellery had been released to him during the investigation itself. This fact itself is evidence that the confessional statement of the Appellant has no evidentiary value. He has further held that as per the report of DRI, DZU dated 12.02.2020, Panchnama dated 31.01.2020 and the photographs that out of total bullion of 2567.509 gms, 700 gms has MMTC PAMP markings, 190 gms bore markings of several Indian Banks Jewellers and 679.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.04.2017, 28.04.2017 and 29.04.2017 of the appellant, wherein he has stated that he had no bills/invoice for the gold with foreign markings. These statements have subsequently been retracted before the appropriate authority by the appellant. There are no other corroborative evidences which have been unearthed by the investigating team in support of their contention. We find that the appellate authority has concluded that sufficient independent evidence needs to be adduced to corroborate the department s contention regarding smuggled nature of the gold and in the absence of the same, it cannot be concluded that all the gold which was seized from the business residential premises was smuggled. He has relied on the following decisions that support his conclusion: (i) Directorate of Revenue Inteligence vs Mahendra Kumar Singhal [2016(333)ELT(250) Del] of Delhi High Court where in the HighCourt relied on Supreme Court s decision in the case of Vinod Solanki vs Union of India which held that there can be conviction only if there is an independent corroboration of the retracted statement. (ii) Ajit Singh vs Addl Commissioner of Customs [2016(332) ELT 01(Del)] of Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween Section 28 of Customs Act, 1962 andSection 11A of Central Excise Act, 1944 has been commented upon in Associated Cement Companies Ltd v. Commissioner of Customs [2001 (128) E.L.T. 21 (S.C.)] to support the contention that, for demand of duty under Section 28, there is no requirement for establishing a motive. 9. Considering that the adjudicating authority has placed overwhelming reliance on the statement of the Director and as the retraction of that statement has not been taken into consideration, we are of the opinion that the adjurement in re K.I. Pavunny mandates independent corroboration. The declaration in the shipping bill, according to us, in the absence of any other evidence must be accepted as truthful assertion of the contents therein. The impossibility of carrying such large number of CDs in the corresponding import package within the declared weighment would lend credibility to the argument of the Learned Counsel that nothing other than stickers and licence had been imported. It is also surprising that, along with revision of the classification, the adjudicating authority compelled a change in the description of the imported goods. We failed to see the necessit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation, it is recorded that gold bullion/coins/jewellery which was satisfactorily explained by the appellant was released to him by the investigating agency themselves. The remaining gold was alleged to be of smuggled nature and was confiscated by the adjudicating authority. We find that the appellate authority has given cognizance to the existing evidence as well the settled judicial pronouncements in this context. He has correctly held that the quantity of gold/gold coins/jewellery which does not carry any foreign marking or which carry BIS Hallmark, or stamps of Indian Banks, Indian jewellers, or company names are liable to be released and the department has not been able to disprove the positive evidence supplied by the appellant regarding the possession of this quantity of gold. In our view, the Commissioner Appeals was justified in releasing the quantity of gold bullion/coins/jewellery for the above mentioned reasons. 13. We now address the second issue placed before us. We note that the in the impugned order, the Commissioner Appeals has carefully gone through the evidence collected through the investigations and the relied upon documents. We note that he has upheld the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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