2007 (9) TMI 170 - AT - Customs

No evidence to prove the Nepalese currencies seized was out of some sale of gold Comm.(A) brought the appellant to charges without cogent evidence to prove smuggling Statement recorded under custom law can be believed with evidence only Impugned order set aside

Summary

Issues involved:
1. Interpretation of evidence by Adjudicating Officer and Appellate Authority
2. Source of money disclosed by the appellants
3. Examination of evidence and findings by Adjudicating Authority
4. Live link between seized currency and its source
5. Role of First Appellate Authority in establishing source of currency
6. Consideration of defence under FEMA Regulation
7. Value of statement recorded under Section 108 of Customs Act, 1962

Analysis:

1. The ld. Consultant argued that the Adjudicating Officer had appreciated the evidence well, but the Appellate Authority misinterpreted it, showing a hostile approach. The Adjudicating Authority found no evidence linking the seized currency to the sale of gold, making the appellants charge-free. The lack of nexus between the sale of gold and the currency seized absolved the appellants of any responsibility.

2. The ld. JDR contended that the appellants did not deny the charge but disclosed that the money came from Nepal. The JDR argued that the appellants were guilty of conspiracy, fabricating evidence, and delaying responses to authorities. However, the JDR failed to provide cogent evidence to refute the appellants' claim about the source of money from Nepal.

3. The Adjudicating Authority's findings included the absence of incriminating evidence during the seizure, no restriction on dealing with Nepalese currency under FEMA, and the failure to establish the currency as sale proceeds of gold. The Adjudicating Authority concluded that there was no live link between the seized currency and its source, and the Revenue failed to prove otherwise.

4. The Adjudicating Authority's thorough examination of the evidence aimed to exonerate the appellants, but the First Appellate Authority, without substantial evidence, wrongly charged the appellants with smuggling activities. The First Appellate Authority's assumptions lacked proper examination and jurisdiction, leading to an unjust conclusion.

5. The defense under FEMA Regulation, raised for the first time, was considered by the Appellate Authority. The absence of established sources and the FEMA Regulation's non-applicability should have led to the appellants being charge-free. The reliance on a statement under Section 108 of the Customs Act, 1962, without corroborative evidence, was deemed insufficient by the Tribunal.

6. The Tribunal set aside the impugned order, allowing all three appeals to succeed, emphasizing the importance of cogent evidence and proper legal procedures in establishing charges and upholding justice.