2005 (9) TMI 198 - AT - Customs

Summary

Issues Involved:
1. Confiscation of gold bars.
2. Confiscation of the jeep.
3. Confiscation of Indian currency.
4. Imposition of penalties on the appellants.
5. Burden of proof under Section 123 of the Customs Act.
6. Validity of retracted statements.
7. Applicability of Supreme Court judgment in Sanjay Gandhi's case.
8. Applicability of Tribunal's decision in Samir Kumar Roy's case.
9. Redemption of confiscated goods under Section 125 of the Customs Act.

Detailed Analysis:

1. Confiscation of Gold Bars:
The gold bars were seized from a jeep and were found concealed in a secret cavity. The appellants claimed that the gold bars were legally purchased from M/s. Navarathan Jewellers, who had acquired them from M/s. MMTC. However, the evidence provided, including invoices and sales registers, did not conclusively prove that the seized gold bars were part of the legally imported consignment. The Tribunal found inconsistencies in the appellants' claims and the supporting documents. The Tribunal concluded that the gold bars were smuggled and upheld their confiscation under Section 111(e) of the Customs Act.

2. Confiscation of the Jeep:
The jeep used for transporting the gold bars was found to have secret cavities for concealing the contraband. The Tribunal held that the vehicle was used for smuggling activities and was liable to confiscation under Section 115(2) of the Customs Act. However, the Tribunal suggested that the vehicle could be redeemed upon payment of a fine, considering the government's liberal policy on gold importation at the time.

3. Confiscation of Indian Currency:
The Indian currency amounting to Rs. 41,625/- was seized along with the gold bars. The show-cause notice alleged that the currency represented the sale proceeds of the gold bars. The Tribunal found this allegation inconsistent with the department's claim that the gold bars were being transported for delivery. Consequently, the Tribunal held that the currency was not liable to confiscation and ordered its release to the owner.

4. Imposition of Penalties on the Appellants:
Penalties were imposed on the appellants under Section 112(b) of the Customs Act for their involvement in smuggling activities. The Tribunal acknowledged the appellants' liability but found the penalties to be harsh. The penalties were reduced to Rs. 3 lakhs for the first appellant and Rs. 1 lakh each for the remaining appellants.

5. Burden of Proof under Section 123 of the Customs Act:
The appellants were required to rebut the presumption of smuggling under Section 123(1) of the Customs Act. The Tribunal held that the appellants failed to discharge this burden, as the evidence provided did not sufficiently prove the lawful acquisition of the gold bars. The Tribunal emphasized that the standard of proof required was a preponderance of probabilities, as in a civil case, but the appellants did not meet this standard.

6. Validity of Retracted Statements:
The appellants retracted their confessional statements before the Judicial Magistrate, claiming they were made under duress. The Tribunal found the retractions to be belated and inconsequential, as there was no evidence of coercion by Customs officers. The original statements were deemed credible and were used to support the findings of smuggling.

7. Applicability of Supreme Court Judgment in Sanjay Gandhi's Case:
The appellants relied on the Supreme Court's judgment in Sanjay Gandhi's case to argue that the burden of proof should be based on a preponderance of probabilities. The Tribunal acknowledged this legal principle but found that the appellants failed to meet even this standard. The evidence provided by the appellants was insufficient to rebut the presumption of smuggling.

8. Applicability of Tribunal's Decision in Samir Kumar Roy's Case:
The appellants cited the Tribunal's decision in Samir Kumar Roy's case, where the confiscation of gold biscuits was set aside based on sufficient evidence of lawful acquisition. The Tribunal distinguished the present case from Samir Kumar Roy's case, noting significant evidentiary lacunae and inconsistencies in the appellants' claims. The Tribunal concluded that the present case did not warrant a similar outcome.

9. Redemption of Confiscated Goods under Section 125 of the Customs Act:
The Tribunal found that the absolute confiscation of the gold bars and the jeep was not necessary. Considering the government's liberal policy on gold importation, the Tribunal held that the goods could be redeemed upon payment of a fine. The case was remanded to the Commissioner to determine the quantum of redemption fine and to provide the claimants with a reasonable opportunity to be heard.

Conclusion:
The appeals were disposed of with modifications to the impugned order. The gold bars and the jeep were allowed to be redeemed upon payment of a fine, the confiscation of the Indian currency was set aside, and the penalties on the appellants were reduced. The case was remanded to the Commissioner for determining the redemption fine and for further proceedings.