2008 (12) TMI 159 - AT - Customs

Gold found absolutely seized Appellant contended that he has at no time claimed the ownership of the same. He has all along been taking the stand that he was only a carrier of the gold. held that Departmental Authorities in my view have rightly relied on the statement given by the Appellant at the time of seizure under Section 108 of the Customs Act 1962 which was untutored and given voluntarily apart from being contemporaneous. The gold seized bore foreign markings and were clearly of foreign origin. The information regarding acquisition of the same given by the Appellant could not stand scrutiny. The Departmental Authorities have found the pleas taken by the Appellant to be false and the same coupled with the clear foreign origin of the goods go to prove the smuggled nature of the impugned gold quite independent of the provisions of Section 123 of the Customs Act 1962 acquittal of accused before the trial court due to fault of the department can not be taken a plea to benefit the accused against the penal provisions.

Issues Involved:
1. Burden of proof in a case involving seized gold.
2. Evidentiary value of a retracted statement given to Customs.
3. Consideration of evidence such as a cash memo produced before the Magistrate.
4. Legal implications of acquittal by the Trial Court in a related prosecution case.
5. Confiscation of gold by Customs authorities and the option of redemption.
6. Admissibility and reliability of statements made under Section 108 of the Customs Act, 1962.
7. Ownership claim and the nature of seized gold.
8. Justification for absolute confiscation of contraband gold under Section 125 of the Customs Act, 1962.

Analysis:

1. Burden of Proof: The Appellant argued that since the gold was initially seized by the Police and then handed over to Customs, the burden to prove that the gold was smuggled lies with the Department. Citing relevant case laws, the Appellant contended that the burden of proof rested on the Department.

2. Evidentiary Value of Retracted Statement: The Appellant retracted a statement given to Customs in reply to a show cause notice, claiming it had no evidentiary value. The Departmental Representative argued that the initial statement was admissible under Section 108 of the Customs Act, 1962, as it was not retracted immediately and was crucial evidence.

3. Consideration of Evidence: The Appellant presented a cash memo before the Magistrate, verified by Customs, but it was not factored into the case decision. The Appellant's argument was that this evidence should have been taken into account during the case proceedings.

4. Legal Implications of Acquittal: The Departmental Representative stated that the Appellant's acquittal by the Trial Court was on technical grounds, and the acquittal did not prevent Customs from adjudicating the matter independently under the Customs Act, 1962.

5. Confiscation and Redemption: The Appellant contended that since gold import was not prohibited, absolute confiscation was unwarranted. The Appellant suggested that redemption should have been an option, especially considering the gold's restricted nature under the Import Policy.

6. Admissibility of Statements: The judge emphasized the admissibility of the Appellant's statement made under Section 108 of the Customs Act, 1962, as crucial evidence, especially since it was not retracted promptly and was given voluntarily.

7. Ownership Claim and Nature of Seized Gold: The judge analyzed the conflicting claims regarding the ownership of the seized gold and concluded that the Appellant's actions, including carrying the gold in a suspicious manner, indicated the smuggled nature of the gold.

8. Justification for Confiscation: The judge upheld the absolute confiscation of the contraband gold under Section 125 of the Customs Act, 1962, citing the lack of ownership claims and the restricted nature of gold import under the Import Policy as legal grounds for the decision.

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