1998 (3) TMI 499 - AT - Central Excise

Issues Involved:

1. Confiscation of foreign gold pieces and Indian currency.
2. Imposition of personal penalties under Section 112(b) of the Customs Act.
3. Legality of the detention and statements obtained from the noticees.
4. Admissibility of affidavits and other documentary evidence.
5. Legitimacy of the seized gold and Indian currency.
6. Cross-examination of witnesses.
7. Confiscation of Indian currency as sale proceeds of contraband gold.

Issue-Wise Detailed Analysis:

1. Confiscation of Foreign Gold Pieces and Indian Currency:

The Commissioner ordered the absolute confiscation of foreign gold pieces weighing 3773.780 grams valued at Rs. 14,23,355/- seized on 11-1-1993 under Section 111(d) of the Customs Act, 1962, along with the bag used for concealing the gold under Section 118. Additionally, Indian currency amounting to Rs. 25,100/- was confiscated under Section 121. The Commissioner concluded that the gold was smuggled into India in contravention of Section 7C and Section 11 of the Customs Act, 1962, read with Section 3(1) and Section 3(2) of the Foreign Trade (Development & Regulation) Act, 1992.

2. Imposition of Personal Penalties under Section 112(b) of the Customs Act:

Personal penalties were imposed against several noticees, including Rs. 25,000/- on Shri Sudesh Kumar Mittoo and varying amounts on others. The Commissioner held that the noticees failed to discharge the burden of proof under Section 123 of the Customs Act, 1962, and were involved in the smuggling of foreign marked gold biscuits, thus liable for penalties.

3. Legality of the Detention and Statements Obtained from the Noticees:

The Commissioner rejected the defense that the statements were obtained under duress and severe beatings. It was noted that searches were conducted before panch witnesses, and no evidence was provided to prove that the statements were recorded under duress. The medical certificate produced by Shri Mittoo was also dismissed as it was obtained from a private doctor in Amritsar, not immediately after his release.

4. Admissibility of Affidavits and Other Documentary Evidence:

The Commissioner found the affidavits and other documents submitted by the noticees to be an afterthought and managed under legal advice. The subsequent affidavits were not accepted as evidence, as they were dated after the seizure and appeared to be fabricated. The stamp vendor corroborated that false entries were made in the stamp register, further discrediting the affidavits.

5. Legitimacy of the Seized Gold and Indian Currency:

The Commissioner concluded that the seized gold was smuggled and not legally imported. The noticees failed to provide credible evidence to support their claims that the gold was legally imported and procured. The initial statements of the noticees, which admitted to the smuggled nature of the gold, were found to be reliable and not retracted.

6. Cross-Examination of Witnesses:

The Commissioner noted that the panch witnesses were offered for cross-examination on multiple dates, but the witnesses/noticees did not appear. Therefore, the Commissioner concluded that the noticees had indulged in smuggling of foreign marked gold biscuits.

7. Confiscation of Indian Currency as Sale Proceeds of Contraband Gold:

The Commissioner observed that the Indian currency of Rs. 25,000/- was found to be the sale proceeds of contraband gold, and no evidence was produced to show the legal acquisition and possession. However, the Tribunal set aside the confiscation of Indian currency, stating that it was not possible to say that the currency was from the proceeds of smuggled gold, and the Collector did not provide detailed reasoning for its confiscation.

Conclusion:

The Tribunal confirmed the confiscation of the gold and the penalties imposed on the noticees. However, the order of confiscation of Indian currency was set aside. The penalties imposed on the noticees were upheld, considering the value of the seized gold. The Tribunal concluded that the seized gold was smuggled and the subsequent affidavits and documents submitted by the noticees were not credible.

← Previous Next →