2017 (5) TMI 497 - AT - Customs

Smuggling - gold bars - absolute confiscation - Held that - it is discretion of the adjudicating authority to allow redemption of goods or to absolute confiscate this discretion is to be based on the fact of individual case. Present case is clear case of smuggling of gold into country therefore Ld. Commissioner exercising his discretionary power confiscated the gold bar absolutely. Looking to the nature of the case, there is no illegality in the action of the Ld. Adjudicating authority for absolute confiscation of the gold bars, therefore absolute confiscation is upheld. Penalty on Shri. Khemani Purushotam Mohandas, from whom the gold was seized - Held that - Since Shri. Khemani Purushotam Mohandas was caught red handed having possession of smuggled gold penalty was rightly imposed upon him. Penalty on Shri Jitendra N. Jeswani and Shri. Narendra P. Jeswani, from whom Shri. Khemani Purshotam Mohandas, was continuously talking over phone while traveling - Held that - Department could not produce any evidence to establish that both the appellants Shri Jitendra N. Jeswani and Shri. Narendra P. Jeswani were conspirator in the smuggling of goods - penalty set aside. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Confiscation of gold bars under Customs Act, 1962.
2. Imposition of penalties under Customs Act, 1962.
3. Redemption of confiscated goods.
4. Alleged involvement of other appellants in smuggling.

Analysis:
1. The case involved the seizure of 54 gold bars from an individual, leading to their confiscation under Sections 111(d), (i), (j), and (l) of the Customs Act, 1962. The adjudicating authority imposed penalties on the individual and other related parties under Section 112(a) of the same Act. The appellants challenged the absolute confiscation of the gold bars, arguing for the option of redemption instead.

2. Despite the absence of the appellants during the proceedings, their submissions highlighted the disagreement with the confiscation and penalties imposed. The appellants contended that there was insufficient evidence linking them to the smuggling activities. The Addl. Commissioner representing the Revenue reiterated the findings of the impugned order.

3. The Member(Judicial) carefully considered the arguments from both sides and reviewed the case records. It was established that the smuggling of gold bars by the main individual was not in dispute, justifying the absolute confiscation. The discretion to allow redemption of goods rested with the adjudicating authority based on the specifics of each case. In this instance, due to the clear case of smuggling, the absolute confiscation was upheld. The penalty imposed on the main individual was deemed appropriate given the circumstances.

4. However, regarding the penalties imposed on the other appellants, the evidence presented, primarily consisting of mobile phone records, was insufficient to establish their direct involvement in the smuggling operation. The lack of concrete evidence linking them to the crime led to the conclusion that the penalties on these appellants were not sustainable. As a result, the appeal of the main individual was dismissed, while the appeals of the other two appellants were allowed.

This comprehensive analysis of the judgment highlights the key issues addressed in the case, including confiscation, penalties, redemption, and the alleged involvement of multiple parties in the smuggling activities.