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TMI Blog2025 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... knee cap and cloth waist band was recovered [i.e. Rs.33.00 lakhs in possession of Shri Jamsheer and Rs.32.00 lakhs each in possession of other three persons]. Besides currency, eight paper slips of which four were torn into two pieces each, with writings in Tamil, were found in their possession. The said Indian currency of Rs.1.29 crores was seized under Mahazar dated 05.09.2013 and also travel tickets for travelling from Arakonam, Chennai to Tirur, Kerala were seized. Statements of these four persons were recorded and later they were arrested. On completion of investigation, it is alleged that the Indian currency seized from the four persons were the sale proceeds of the smuggled gold which was received by these four persons at the instance of one Shri K.V. Kunhimohammed; hence liable to be confiscated. Consequently, a show-cause notice was issued on 28.02.2014 proposing confiscation of seized currency amounting to Rs.1.29 crores under Section 121 of the Customs Act, 1962 and also penalty under Section 112 and 117 of the Customs Act on all four persons and Shri K.V. Kunhimohammed. On adjudication, the Indian currency totalling to Rs.1.29 crores directed to be confiscated und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice indicating the source of cash seized by the Department and filed separate request petitions to permit to cross-examining the witnesses. Assailing the impugned order, he has submitted that as per the statements recorded from the four persons, it is clear that they were not parties to the alleged smuggling of gold and they were persons entrusted the work to carry the cash only. The persons who entrusted the cash to these four persons at Chennai mentioned to them that the same was sale proceeds of the smuggled gold which cannot be relied upon as no such person would disclose that proceeds are of sale of smuggled gold. Further, he has submitted that the person who handed over the cash at Chennai could not be traced by the Department nor any details regarding the smuggling, passenger, quantity of gold, details of sale etc. brought out on record. They have submitted that all these four persons had retracted the statements on 06.09.2013; hence their statements recorded on 05.09.2013 cannot be basis for holding that the currency recovered from them are sale proceeds of smuggled gold. Further, he has submitted that the denial of cross-examination of the witnesses as requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r slips in Tamil which connected with the sales proceeds of illegally imported gold were also seized. Statements of these four persons were recorded under Section 108 of the Customs Act, 1962 on the same day i.e. 05.09.2013 wherein all of them were admitted that the seized currencies were the sale proceeds of smuggled gold and they were carrying the same to handover to Shri K.V. Kunhimohammed. They also described the entire modus operandi as how and where the currency was collected and explained the details in the slips showing the transaction of the gold. The slips recovered from Shri Khairudheen showed writing such as 1006X3025 = 30,43,150/- and similarly, other persons had paper slips with weight in grams multiplied by rate and the total amount. Further, he has submitted that Shri K.V. Kunhimohammed was not able to provide sufficient proof for the licit sources of the huge amount of cash seized and he has submitted details of withdrawal from his wife's account for a sum of Rs.24,27,000/- over a period of four years. If the gold trading business was of legal and licit nature, sending cash through carriers would have been avoided. Further, the statements of the carriers explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge or reason to believe that the goods are smuggled goods, the sale-proceeds thereof shall be liable to confiscation." 8. The learned Commissioner in the impugned order though acknowledged at para 34 of the order that the investigation has not been able to produce evidences regarding smuggling of gold or linking the seized currency directly to smuggled gold; however making a generalized remark held that smuggling of goods including the gold is primarily an offence that takes place at the border / frontier and it is almost impossible to distinguish or identify smuggled goods from licitly imported ones, once they move into the domestic tariff area. Further he observed that the currency must have been the sale proceeds of smuggled gold. Further, referring to the principle laid down by the Hon'ble Supreme Court in D. Bhoormull's case that preponderance of probability be given emphasis and the case is not required to be proved through mathematical precision, he had observed that Shri K.V. Kunhimohammed has neither been able to provide the sources of amount of cash seized nor able to provide evidence about handling gold imported legally into the country and the slips recovered f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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