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TMI Blog2024 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2016 passed by the Commissioner of Central Excise (Appeals - II), Trichy. 2. Brief facts of the case are that on 30.9.2014 police officers attached to Kenikarai Police Station, Ramanathapuram handed over the appellants herein and others to the Customs authorities along with Indian currency valued at Rs.50,91,500/- allegedly being the sale proceeds of smuggled gold from Sri Lanka; three used cars for the transportation of the smuggled gold from the seashore of Manamelgudi - Kottaipattinam to Chennai and three used cell phones recovered from the said persons. The Customs officers seized the above goods under a mahazar dated 30.9.2014 for further action under the Customs Act, 1962. Statements were recorded from the accused persons. After du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not voluntary or that it was obtained by threat, coercion or inducement, the burden would be on the prosecution to prove that the confession was made by the accused voluntarily". The learned Counsel stated that the non-seizure of the Gold allegedly smuggled from Sri Lanka; the non-identity and non-arrest of one Pawar, resident of Mannadi, Chennai, who is said to be the purchaser of gold; the inability of the prosecution to prove the link or relationship between the sale proceeds of smuggled Gold and the seized Indian currency from Senthilvelan who has accounted for the money, though not required to do so, being Indian currency, pointed to grave flaws in the investigation. The rejection by the Joint Commissioner of the request to cross e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing since Customs Officers are not police officers under Section 108 of the Customs Act 1962. She stated that it is clearly seen that their retraction after 7 months is nothing but only an afterthought. She submitted that the three appellants namely S/Shri Soundararajan, Senthilvelan and Gajendran are liable for penalty for their direct role in the Illicit import of gold from Sri Lanka and subsequent sale of the same. The buyer of the gold has been identified as Shri Pawan. Even though he could not be apprehended, other finding like his cell number is a clear proof of his participation in the episode. Even the presence of Shri Naufer the alleged mastermind behind smuggling has been confirmed by the fact that he was involved in crime no 410/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge of the fact deposed by him. However in this matter the whole case is largely made up of statements where the main parties have not been apprehended and the smuggled gold not seized. In such a case when reliance is placed on the third party statements who are available, the benefit of cross-examination should be allowed to the appellant. More so because no independent evidence has been produced to corroborate the truth of the statements and facts in issue. There was nothing to suggest that gold of foreign origin was actually smuggled into the country other than the statements made which were retraced. Reasonable belief to seize the currency cannot be based on presumption. Allegations based on assumptions and presumptions have no l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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