2015 (9) TMI 1314 - AT - Customs

Ownership of Seized goods Legitimate transaction appellant argued that seized goods were properly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of the Customs Act, 1962 - Appellant alongwith on other was intercepted and 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons Whether seized goods were purchased and/or owned by appellant. Held that -It was observed from case records that Appellant claimed ownership of seized goods Retraction made by Appellant was not acceptable Supreme Court s judgment in case of Vinod Solanki Vs UOI 2008 (12) TMI 31 - SUPREME COURT , specifically ruled that evidence brought out by confession if retracted must be corroborated by other independent and cogent evidences In view of circumstances there was corroboration and justification for retraction on part of Appellant Employee of Appellant confirmed to have prepared paper found alongwith seized packet All others who were investigated denied ownership of seized gold bars Thus, Appellant was rightful owner/claimant of seized goods. Adjudicating authority held that no payments were made by Appellant for seized gold bars Appellant brought on record letter under which order was placed for 3000 gold bars before branch manager of Allahabad bank As per cross-examination Bank has sold gold bars to M/s Amrapali Industries Ltd Source of seized gold biscuits were traced out to genuine purchase from authorised Bank Under existing matrix, it cannot be said that Appellant failed to explain licit acquisition of seized gold bars, when he was regularly buying such gold bars in past Appeal allowed Decided in favour of appellant.

Summary

Issues Involved:
1. Ownership of the seized goods.
2. Legitimacy of the purchase of the seized goods from M/s Amrapali Industries Ltd.
3. Imposition of penalty under Section 112(a) and 112(b) of the Customs Act, 1962.

Detailed Analysis:

1. Ownership of the Seized Goods:
The Appellant initially disowned the 40 gold bars seized on 08.04.1999. However, the statement recorded on 09.04.1999 revealed that transactions were conducted by Shri Dilip P. Vyas and Shri Deepak P. Vyas of M/s Krupa Traders, who denied ownership of the seized goods. The employee of M/s Shreya Traders confirmed the creation of the paper accompanying the gold bars under the instruction of Shri Pragnesh. Despite the initial denial, the Appellant claimed ownership on 12.04.1999 and filed for anticipatory bail, indicating a fear of arrest, which corroborates the retraction. The Supreme Court in Vinod Solanki Vs UOI held that retracted confessions need corroboration by independent evidence. The corroborative evidence included the paper with the Appellant's name and the employee's confirmation of preparing it. Hence, the Appellant was deemed the rightful owner of the seized goods.

2. Legitimacy of the Purchase from M/s Amrapali Industries Ltd:
The bill from M/s Amrapali Industries Ltd was not initially produced. The Adjudicating authority noted discrepancies in the payment records. However, the Additional Commissioner's report indicated regular purchases by the Appellant from M/s Amrapali Industries Ltd. The statement from M/s Amrapali Industries Ltd's MD confirmed an outstanding amount of Rs. 19,69,800, which could not be linked to Bill No.216, dt.07.04.1999, as claimed by the Revenue. The cross-examination of the investigating officer confirmed the purchase of gold bars from a recognized bank. The Tribunal referred to case laws like S.K. Chains Vs CC (Prev.) Mumbai, which held that proving lawful acquisition discharges the burden of proof. Hence, the bill from M/s Amrapali Industries Ltd was accepted as proof of legitimate purchase, making the seizure and confiscation unjustified.

3. Imposition of Penalty:
Given the conclusion that the Appellant was the rightful owner and had legitimately purchased the gold bars, the issue of imposing a penalty under Section 112(a) and 112(b) of the Customs Act, 1962, became moot.

Conclusion:
The appeal was allowed with consequential relief, recognizing the Appellant as the rightful owner of the seized gold bars and validating the purchase from M/s Amrapali Industries Ltd. The confiscation and penalty were deemed unjustified based on the corroborative evidence and legal precedents.