2001 (1) TMI 385 - AT - Customs

Summary

Issues Involved:
1. Confiscation of currency under Section 121 of the Customs Act.
2. Imposition of penalties on Mohan Shet and Sujatha Mohan Shet.
3. Applicability of Section 123 of the Customs Act.
4. Burden of proof regarding the smuggled nature of the gold.
5. Validity of the statements and evidence provided by Mohan Shet and others.

Issue-Wise Detailed Analysis:

1. Confiscation of Currency under Section 121 of the Customs Act:
The Commissioner of Customs (Preventive), Mumbai, ordered the confiscation of Rs. 75 lakhs seized from Mohan Shet under Section 121 of the Act, believing it to be the sale proceeds of smuggled gold. The Tribunal noted that merely possessing a large amount of money is insufficient evidence to conclude it was obtained from selling smuggled goods. The Tribunal emphasized that for Section 121 to apply, it must be established that the currency is the sale proceeds of smuggled goods, and the sale must be by a person knowing or having reason to believe that the goods were smuggled.

2. Imposition of Penalties on Mohan Shet and Sujatha Mohan Shet:
The Commissioner imposed a penalty of Rs. 10 lakhs on Mohan Shet and Rs. 2.5 lakhs on Sujatha Mohan Shet. The Tribunal found no clear admission by Mohan Shet that he knew the gold was smuggled. His conduct, while suspicious, did not conclusively prove that the gold was smuggled. Regarding Sujatha Shet, the Tribunal noted that there was no evidence connecting her to the transactions, and the penalty seemed to be imposed solely because she was the proprietor of the firm.

3. Applicability of Section 123 of the Customs Act:
The Tribunal accepted the contention that Section 123, which shifts the burden of proof to the person from whom goods are seized if they are reasonably believed to be smuggled, does not apply to currency seizures. The show cause notice wrongly invoked Section 123, and the Commissioner rightly did not rely on it. The burden of proving that the gold was smuggled remained with the department.

4. Burden of Proof Regarding the Smuggled Nature of the Gold:
The Tribunal emphasized that the burden of proving the smuggled nature of the gold was on the department. The Commissioner relied on the statements of Mohan Shet and his employees, which did not conclusively establish that the gold was smuggled. The Tribunal found that the department did not discharge its burden of proof satisfactorily. The suspicious conduct of Mohan Shet suggested the possibility that the gold could be smuggled but did not establish it by acceptable evidence.

5. Validity of the Statements and Evidence Provided by Mohan Shet and Others:
The Tribunal scrutinized the statements of Mohan Shet and his employees. It found inconsistencies and a lack of clear admission regarding the smuggled nature of the gold. The Tribunal noted that the late production of account entries and duty receipts raised doubts but did not conclusively prove smuggling. The statements of employees Ravankar and Thakkar were not helpful in establishing the sale of smuggled goods.

Conclusion:
The Tribunal concluded that the confiscation of the currency and the penalties imposed on Mohan Shet and Sujatha Mohan Shet were not sustainable. The appeals were allowed, and the impugned order was set aside. The Tribunal emphasized the need for clear and acceptable evidence to establish the smuggled nature of the goods for the provisions of Section 121 to apply.