2001 (2) TMI 674 - AT - Customs

Summary

Issues Involved:

1. Denial of cross-examinations of Panchas and seizing officer.
2. Voluntariness and reliability of statements recorded under duress.
3. Confiscation of Indian currency as sale proceeds of smuggled goods.
4. Compliance with Section 110(2) and Section 124 of Customs Act regarding the issuance of show cause notice.
5. Legality of seizure and confiscation of gold, silver, palladium, wristwatches, foreign currency, and vehicles.
6. Imposition of penalties under Section 112 of Customs Act.

Issue-wise Detailed Analysis:

1. Denial of Cross-Examinations of Panchas and Seizing Officer:
The appellants argued that the denial of cross-examinations of Panchas and the seizing officer was fatal to the case. The Tribunal noted that the Panchanama dated 3-12-1990 showed the presence of two Panchas and the Customs officers during the search and seizure. The Tribunal found that the Panchas were called from the vicinity of the premises and were not permanent Panchas of the department, thereby validating the drawing of the Panchanama and the seizure process.

2. Voluntariness and Reliability of Statements Recorded Under Duress:
The appellants contended that their statements were not voluntary and were recorded under duress. They produced medical certificates and retraction letters to support their claim. The Tribunal examined the statements recorded under Section 108 of Customs Act and noted the circumstances under which they were recorded, including the appellants' detention and alleged assault. The Tribunal found the statements to be unreliable due to the lack of voluntariness and the presence of coercion, as substantiated by medical reports and retraction letters.

3. Confiscation of Indian Currency as Sale Proceeds of Smuggled Goods:
The appellants argued that the confiscation of Indian currency was bad in law as it was not proven to be the sale proceeds of smuggled goods. The Tribunal referred to various judgments, including Nanalal K. Jain and Others v. Collector, which held that the burden lies on the department to prove that the seized currency represents the sale proceeds of smuggled goods. The Tribunal found that the department failed to establish a clear nexus between the seized currency and the smuggled goods, thereby invalidating the confiscation under Section 121 of Customs Act.

4. Compliance with Section 110(2) and Section 124 of Customs Act:
The appellants contended that the show cause notice was not served within the stipulated six months, thereby vitiating the confiscation process. The Tribunal examined the relevant sections and found that the show cause notice was issued within the prescribed period. The Tribunal upheld that the issuance of the notice was in compliance with the law, rejecting the appellants' contention.

5. Legality of Seizure and Confiscation of Gold, Silver, Palladium, Wristwatches, Foreign Currency, and Vehicles:
The Tribunal analyzed the seizure and confiscation of various items, including gold, silver, palladium, wristwatches, and foreign currency. It found that the department failed to provide sufficient evidence to prove that these items were smuggled. The Tribunal noted the lack of corroborative evidence and the reliance on retracted statements. It also found that the vehicles were not proven to be used for transporting contraband goods, thereby invalidating their confiscation under Section 115(2) of Customs Act.

6. Imposition of Penalties under Section 112 of Customs Act:
The Tribunal examined the imposition of penalties on the appellants and found that the department's case was primarily based on unreliable statements and insufficient evidence. It held that the penalties under Section 112 of Customs Act were not maintainable due to the failure to establish the smuggled nature of the goods and the sale proceeds.

Conclusion:
The Tribunal concluded that the department failed to establish a clear and identifiable link between the seized goods and smuggled items. It found the statements recorded under duress to be unreliable and noted the lack of corroborative evidence. The Tribunal set aside the impugned order, allowed the appeals, and ordered the return of the seized goods and consequential relief as per law.