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2009 (9) TMI 412 - AT - CustomsConfiscation and penalty- 5 boxes containing 2514.750 gms of 16 to 18 carats purity smuggled gold valued at Rs.7,97,731/- were recovered by the Police Sub-Inspector Shri M.J. Parmar at Panchkoshi B-Division, Jamnagar from the goldsmiths of Jamnagar and Bhuj under Section 102 of the Criminal Procedure Code. The said action was taken on the basis of information received by the DSP, Jamnagar that two persons viz. Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar, both of Sikka, Jamnagar had smuggled the gold ornaments from Dubai (Malgoi) and brought to Salaya (India) in a vessel of Salaya during the month of December, 1993 and the same were disposed of to goldsmiths of Jamnagar and Bhuj. The seven gold bars of 16 to 18 carats purity contained in 5 boxes totally weighing 2514.750gms having value of Rs.7,97,731/- were handed over by Shri M.J. Parmar, PSI to the Customs Department on 11-4-94 for taking action under the provisions of Customs Act, 1962. Held that- In view of the above, I do not find any valid reason to interfere with the order confiscating gold bars absolutely to the Government by the Commissioner in view of the fact that the same were smuggled into India in contravention of the provisions of Customs Act, 1962 and therefore are liable to confiscation under Section 111(d), 111(e) and 111(i) read with Section 120(1) of Customs Act, 1962.Accordingly, penalties imposed upon the appellants under Section 112(b) of Customs Act, 1962 are reduced to the amounts.
Issues Involved:
1. Confiscation of smuggled gold. 2. Admissibility and credibility of affidavits and evidence. 3. Applicability of Section 123 of the Customs Act, 1962. 4. Imposition and quantum of penalties. Detailed Analysis: 1. Confiscation of Smuggled Gold: The case involves the recovery of 2514.750 grams of gold, valued at Rs. 7,97,731/-, from various individuals by the police and subsequent handover to the Customs Department. The gold was seized under the provisions of the Customs Act, 1962, as the individuals did not possess any import documents to substantiate the licit import of the gold. Statements recorded under Section 108 of the Customs Act, 1962, revealed that the gold was smuggled from Dubai and converted into gold bars in India. The gold was absolutely confiscated by the Commissioner (Appeals) and the order was upheld by the Tribunal, citing substantial evidence from various statements and the lack of credible contrary evidence from the appellants. 2. Admissibility and Credibility of Affidavits and Evidence: The appellants submitted several affidavits and documents claiming the gold belonged to their family members. However, the Commissioner rejected these affidavits due to contradictions and discrepancies. For instance, Shri Ishwarlal Soni's affidavits were contradictory regarding the source and conversion of the gold. Similarly, Shri Mukundlal Harilal Patadia's documents showed discrepancies in the weight and source of the gold. Shri Gusani's documents were also found lacking due to unexplained weight discrepancies. The Tribunal agreed with the Commissioner's assessment that these affidavits and documents were self-serving and not credible. 3. Applicability of Section 123 of the Customs Act, 1962: The appellants argued against the applicability of Section 123 of the Customs Act, 1962, relying on the decision in M/s. Gianchand & Ors. v. State of Gujarat. The Commissioner, however, noted that this decision pertained to the Sea Customs Act, which is not pari materia with Section 123 of the Customs Act, 1962. The Tribunal upheld the Commissioner's view, stating that the decision cited by the appellants was not applicable to the current provisions of the Customs Act, 1962. 4. Imposition and Quantum of Penalties: Penalties were imposed under Section 112(b) of the Customs Act, 1962, on various individuals involved in the case. The Tribunal acknowledged that the appellants intended to profit from the smuggled gold, warranting penalties. However, considering the absolute confiscation of the gold, the Tribunal reduced the penalties to more reasonable amounts: - Shri Ishwarlal Soni: Rs. 20,000/- - Shri M.H. Patadia: Rs. 7,500/- - Shri C.H. Varia: Rs. 5,000/- - Shri H.H. Gusani: Rs. 6,000/- Conclusion: The Tribunal upheld the absolute confiscation of the gold bars, citing substantial evidence of smuggling and lack of credible contrary evidence. The affidavits and documents submitted by the appellants were found to be self-serving and contradictory. The applicability of Section 123 of the Customs Act, 1962, was confirmed, and the penalties imposed were reduced to reasonable amounts considering the circumstances.
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