2007 (6) TMI 429 - AT - Customs

Summary

Issues Involved:
1. Legality of the confiscation of gold biscuits and Indian currency.
2. Validity of the penalties imposed on the appellants.
3. Allegations of coercion, duress, and torture in obtaining statements.
4. Legitimacy of the gold purchase claim from M/s. Tripura Sundari Jewellers.
5. Burden of proof and the application of Section 123 of the Customs Act, 1962.

Detailed Analysis:

1. Legality of the Confiscation of Gold Biscuits and Indian Currency:
The appellants challenged the de novo adjudication order dated 23-9-2003, which ordered the absolute confiscation of 26 pieces of gold biscuits of foreign origin under Section 111(d) of the Customs Act, 1962, with an aggregate value of Rs. 16,07,437/-, and the confiscation of Indian Currency of Rs. 1,320/- under Section 121 of the Act. The seized newspapers and cotton waist belt were confiscated under Section 119 of the Act. The ld. Commissioner held that the gold biscuits were not legally procured, and no evidence of legal possession was produced at the time of interception or during the investigation.

2. Validity of the Penalties Imposed on the Appellants:
Penalties were imposed under Section 112(b) of the Act on the appellants: Rs. 3,50,000/- on Shri Sambhu Nath Dubey, Rs. 1,50,000/- on Shri Sandeep Jain, Rs. 1,00,000/- on Shri Prakash Chand Jain, and Rs. 1,50,000/- on Shri Manoj Kumar Jain. The ld. Commissioner found that appellants Sandeep Jain and Manoj Kumar Jain were carrying 11 and 15 pieces of gold biscuits respectively and could not produce any documents to explain the legality of the import or possession.

3. Allegations of Coercion, Duress, and Torture in Obtaining Statements:
Appellants argued that their statements were recorded under coercion, threat, and torture in custody, which were retracted and thus unreliable. Medical records were cited to support the claim of custodial torture. However, the tribunal found that the statements were admissible as substantive evidence under Section 108 of the Customs Act, and the burden was on the appellants to prove that the statements were obtained under duress, which they failed to do.

4. Legitimacy of the Gold Purchase Claim from M/s. Tripura Sundari Jewellers:
Appellant Prakash Chand Jain claimed that the gold was purchased from M/s. Tripura Sundari Jewellers of Ahmedabad. However, investigations revealed that the claim was false, as the baggage receipt relied upon was found to be issued to a different person, and the signatures did not match. The tribunal concluded that the acquisition of the gold was not out of legal import, and the possession by appellants 2 and 4 was held to be smuggled.

5. Burden of Proof and the Application of Section 123 of the Customs Act, 1962:
The tribunal held that the department discharged its burden of proof by providing a chain of evidence proving the falsehood of the appellants' claims. The burden then shifted to the appellants to rebut the evidence, which they failed to do. The tribunal cited various judgments to support the admissibility and probative value of confessional statements recorded under Section 108 of the Customs Act. The tribunal emphasized that the burden of proving that the goods are not smuggled lies on the person from whose possession the goods were seized, as per Section 123 of the Act.

Conclusion:
The tribunal found no merit in the appellants' arguments and upheld the order of adjudication, concluding that all four appellants were rightly brought to charge. The appeals were dismissed, and the order of confiscation and penalties was affirmed. The tribunal emphasized that the appellants failed to discharge their burden of proof and that the statements recorded under Section 108 of the Customs Act were valid and admissible.

Pronounced in the open Court on 27-6-07.