2017 (11) TMI 1003 - AT - Customs

Penalty - smuggling of gold by the process of courier - case of appellant is that the impugned order is passed merely on presumption and assumption without any legally sustainable evidence - Held that - In view of the clear cut evidence by way of various statements recorded during investigations which have not been controverted by the appellants except saying that they are not concerned with the said courier and it does not belong to them - in view of the detailed reasoned order passed by both the authorities below discussing the role of each appellants in the matter of smuggling of gold by the process of courier, there are no infirmity in the impugned orders - appeal dismissed - decided against appellant.

Issues:
1. Upholding of penalty under Section 112(a) of the Customs Act 1962.
2. Dropping of penalty under Section 114AA of the Act.
3. Applicability of Customs Act 1962 beyond Indian territory.
4. Involvement of the appellant in smuggling gold through courier agencies.
5. Evidence and statements recorded during the investigation.
6. Role of the appellant in the smuggling of gold.

1. Penalty under Section 112(a) Upheld:
The appellants filed appeals against impugned orders upholding penalties of ?3,00,000 each under Section 112(a) of the Customs Act 1962. The Commissioner (Appeals) upheld the penalties after considering the evidence on record, despite dropping a penalty under Section 114AA in one case. The appellants challenged the sustainability of the orders, claiming no involvement in the smuggling and that the confiscated gold did not belong to them. However, the authorities relied on evidence indicating the appellants' role in the smuggling operation through courier agencies. The learned counsel for the appellants argued against the assumptions and lack of concrete evidence supporting the penalties.

2. Dropping of Penalty under Section 114AA:
In one of the cases, the penalty of ?2,00,000 under Section 114AA was dropped by the Commissioner (Appeals) but upheld under Section 112(a) for both appellants. The appellants contested the orders, claiming no connection to the seized gold and challenging the lack of legally sustainable evidence against them. The defense argued that the penalties were based on presumptions and assumptions without concrete proof of the appellants' involvement in the smuggling activities.

3. Applicability of Customs Act 1962 Beyond Indian Territory:
The defense raised the argument that the Customs Act 1962 should not apply beyond the territory of India, implying that no action could be taken against individuals outside Indian territory. This raised a jurisdictional issue regarding the enforcement of the Act in cases involving individuals residing abroad.

4. Involvement of the Appellant in Smuggling Gold Through Courier Agencies:
Investigations revealed that the appellant operated a cargo forwarding agency that facilitated the smuggling of gold into India through courier parcels with concealed gold sheets. The appellant's agent in India received the parcels using fake identities and mobile numbers. The seized gold was traced back to the appellant's agency in the UAE, indicating his involvement in the smuggling operation.

5. Evidence and Statements Recorded During Investigation:
Both authorities relied on statements and evidence gathered during the investigation to establish the appellants' role in the smuggling activities. The statements of involved parties pointed towards the appellants' direct or indirect involvement in the smuggling of gold through courier agencies, despite the appellants denying any connection to the seized gold.

6. Role of the Appellant in the Smuggling of Gold:
The defense argued that the appellants were not directly involved in the possession, transportation, or dealing with the confiscated gold sheets seized from courier agencies. They claimed that the appellants were not the consignors or consignees of the parcels containing gold and that the impugned orders were based on assumptions and presumptions without substantial evidence linking the appellants to the smuggling activities.

In conclusion, the Tribunal upheld the penalties under Section 112(a) for both appellants, dismissing their appeals based on the evidence and statements indicating their involvement in the smuggling of gold through courier agencies. The defense's arguments regarding lack of concrete evidence and jurisdictional issues were not accepted, leading to the affirmation of the penalties imposed under the Customs Act 1962.

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