2020 (10) TMI 341 - AT - Customs

Levy of penalty - Smuggling - gold bars bearing foreign origin - Reliability of statements - retraction of statements or not - HELD THAT - In the case of Shri Nirmalendu Paul, the circumstantial evidence produced by the Department shows that he was caught with the seized gold bars. In his statement under Section 108 of Customs Act, 1962 given on 14.06.2016, and subsequently on 22.08.2016 during investigation, he has confessed that he was carrying the seized gold in his person and that the actual owner was Shri Debraj Paul (Appellant No. 2). He never retracted his statements during the investigation stage. He has also given the mobile number of Shri Debraj Paul and Calls Details Record (CDR) in respect of the mobile numbers given by Shri Nirmalendu Paul showed that users of these mobile numbers were known to each other. Shri Debraj Paul in his voluntary statements denied any link to Shri Nirmalendu Paul and also refused to recognize him - Shri Debraj Paul could not explain as to why Shri Nirmalendu Paul took his name immediately after interception and in the voluntary statements during investigation. He has also stated that he does not have any other business except the grocery shop. But his son Shri Debasish Paul stated that Shri Debraj Paul used to do export import business also and has a valid IEC number. It is found that only after issuance of the Show Cause Notice Shri Nirmalendu Paul, appellant No. 1. changed his version which appears to be an afterthought. During the personal hearing his Advocate claimed that the seized gold were actually recovered from a bag kept under the seat of the bus which was being occupied by Shri Nirmalendu Paul. His advocate also sought for cross examination of the independent witnesses present of the time of the seizure and that his statements were taken under threat and duress. It is found the appellant no. 1 had never altered his statements and until the end of the investigation he maintained that the gold bars were acquired by him on behalf of the appellant no. 2. The confiscation of the seized goods and imposition of personal penalties are justified - quantum of penalty reduced - Appeal allowed in part.

Summary

Issues Involved:
1. Recovery and seizure of contraband gold.
2. Voluntary statements and their credibility.
3. Examination of circumstantial evidence and call details.
4. Imposition of penalties on the appellants.
5. Request for cross-examination of witnesses.
6. Justification and quantum of penalties.

Detailed Analysis:

1. Recovery and Seizure of Contraband Gold:
The case began with the interception of an individual carrying 9 gold bars of foreign origin, weighing 1049.760 gm, by DRI officers. The gold was seized in the presence of independent witnesses, and the individual admitted to carrying the gold knowingly.

2. Voluntary Statements and Their Credibility:
The individual provided a voluntary written statement under Section 108 of the Customs Act, 1962, admitting to carrying the gold for another person in exchange for payment. He later reiterated his confession in another statement, maintaining that the gold belonged to a third party. The statements were not retracted during the investigation, and the individual did not provide any documents supporting the lawful acquisition or possession of the gold.

3. Examination of Circumstantial Evidence and Call Details:
The investigation included verification of subscriber details and call records of the mobile numbers involved. The call records indicated frequent communication between the individual and the alleged owner of the gold. The investigation also revealed that the SIM cards recovered were registered under different names, further complicating the case.

4. Imposition of Penalties on the Appellants:
The adjudicating authority ordered the absolute confiscation of the gold and imposed penalties on both the individual carrying the gold and the alleged owner. The penalties were based on the evidence gathered, including the voluntary statements and call records.

5. Request for Cross-Examination of Witnesses:
The individual requested the cross-examination of the independent witnesses, claiming that his statements were taken under duress. However, the Commissioner (Appeals) found no evidence to support the claim of duress and noted that the individual had ample opportunity to retract his statements but did not do so.

6. Justification and Quantum of Penalties:
The Commissioner (Appeals) upheld the confiscation of the gold and the imposition of penalties but found the penalties excessive. The penalties were reduced to ?10,000 for the individual carrying the gold and ?50,000 for the alleged owner, considering the circumstances and evidence.

Conclusion:
The tribunal upheld the confiscation of the seized gold and the imposition of penalties, albeit reduced. The judgment emphasized the credibility of the voluntary statements and the corroborative evidence from call records, dismissing the claims of duress and the need for cross-examination of witnesses. The case concluded with the penalties being adjusted to more reasonable amounts given the evidence and circumstances.