2024 (5) TMI 529 - AT - Customs

Smuggling - illegal importation of the seized gold - Confiscation of the gold and Indian currency - Penalty - 'Prohibited goods' Or 'restricted items' - HELD THAT - We find that the investigation has failed to bring in any evidence to counter this claim made by the appellant no. 1. Thus, we observe that there is no evidence available on the record to show that the Indian currency seized was the sale proceeds of the gold smuggled by appellant no. 1. Accordingly, we hold that the seizure of the Indian currency amounting to Rs.46,00,000/- is not sustainable. Thus, we hold that the confiscation of Indian currency of Rs.46,00,000/- u/s 121 of Customs Act, 1962 is not sustainable. Accordingly, we set aside the confiscation of the Indian currency in the impugned order. Imposition of penalty on appellant no.1 - W e observe that there is no evidence on record to show that appellant no.1 was involved in the smuggling of the gold into the country without payment of Customs duty. Appellant no.1 has been implicated by the two persons apprehended by the DRI, Kolkata. However, the search of the premises of the appellant no. 1 has not yielded any evidence in connection with the seizure of the said gold. Thus, we hold that the penalty imposed on the appellant no. 1 u/s 112 of the Customs Act, 1962 is not sustainable and accordingly, the same is set aside. Imposition of penalty on Shri Krishna Pramanik (appellant no. 2) - We observe that the apprehended persons have named one Krishna Sarkar as the person who handed over the gold to them. However, We do not find any evidence available on record to show that the said Krishna Sarkar and Krishna Pramanik are one and the same. The appellant no. 2 has been implicated in aiding transportation of the smuggled gold, but there is no evidence to substantiate this allegation. Thus, we hold that the penalty imposed on the appellant no. 2 is not sustainable. Imposition of penalty on the appellant nos. 3 and 4 - It is observed that they were apprehended by the officers of DRI, Kolkata when the gold weighing 2.625 Kgs was in their possession. They were not having any document to establish the licit import of the gold. Thus, there is 'reason to believe' that the gold was smuggled in nature and the involvement of the appellants no. 3 and 4 in the transportation of the smuggled gold without any valid document is established. We observe that the goods in question are not 'prohibited goods' warranting severe penalty. The goods are 'restricted items' for which a lesser penalty would meet the ends of justice. We find that the appellants have heavily relied on the decision of the Hon ble High Court in the case of Gopal Saha 2016 (5) TMI 83 - CALCUTTA HIGH COURT . Thus, we find that the penalties are imposable on the appellant nos. 3 and 4, but the same are on the higher side. Therefore, we reduce the penalties imposed on these appellants to Rs.5,00,000/- (Rupees Five Lakhs only) each - In the result, the appeals filed by all the four appellants are disposed of.

Summary

Issues Involved:
1. Confiscation of Indian currency u/s 121 of the Customs Act, 1962.
2. Imposition of penalties u/s 112 of the Customs Act, 1962 on various appellants.

Summary:

Confiscation of Indian Currency u/s 121 of the Customs Act, 1962:

The appellant no. 1 contested the confiscation of Rs.46,00,000/- seized from his residence, arguing it was family property meant for distribution among legal heirs. The Tribunal observed that the investigation failed to provide evidence that the currency was the sale proceeds of smuggled gold. The appellant no. 1 supported his claim with documents, and the Tribunal found no evidence to counter this claim. Citing precedents like Ramachandra v. Collector of Customs and Sudesh Kumar Mittoo v. Collector of Cus. & C.Ex., Jaipur, the Tribunal held that the confiscation of the Indian currency under Section 121 of the Customs Act, 1962, is not sustainable and ordered its release.

Imposition of Penalties u/s 112 of the Customs Act, 1962:

The Tribunal addressed the penalties imposed on the appellants as follows:

Appellant No. 1: The Tribunal found no evidence linking appellant no. 1 to the smuggling of gold. The penalty imposed under Section 112 of the Customs Act, 1962, was set aside.

Appellant No. 2: The Tribunal observed that there was no evidence to prove that 'Krishna Sarkar' and 'Krishna Pramanik' were the same person. Thus, the penalty imposed on appellant no. 2 was not sustainable and was set aside.

Appellant Nos. 3 and 4: The Tribunal noted that these appellants were caught with gold weighing 2.625 kgs without valid documents, establishing a 'reason to believe' that the gold was smuggled. However, considering the gold was not a prohibited item but a restricted one, the Tribunal deemed the penalties imposed as high. The penalties were reduced to Rs.5,00,000/- each.

Final Order: The Tribunal set aside the confiscation of Indian currency and penalties on appellant nos. 1 and 2, and reduced the penalties on appellant nos. 3 and 4 to Rs.5,00,000/- each.

(Order pronounced in the open court on 09.05.2024)