2015 (11) TMI 1157 - AT - Customs

Waiver of pre-deposit - Seizure of goods - Confiscation of gold biscuit - Attempt to smuggle gold - Held that - Adjudicating authority passed a detailed order containing 29 pages and given detailed findings wherein he has brought out the modus operandi in the smuggling of gold by Shri J. Anand in carrying foreign marked gold biscuits. We find that there is no dispute on the fact of smuggling of gold by appellant Shri J. Anand. We find that statements were recorded and investigation was carried out, mahazars were drawn and panchnama filed. The goods were physically concealed in the arm rest of the vehicle. Both mahazar of seizure of gold and statement recorded under Section 108 of Customs Act are valid evidence under the Customs Act as officers of Customs are not police officers. We have perused the citations relied by the appellant including the citation of Hon ble High Court in the case of Ved Parkash Sikiri Vedi Vs UOI (1990 (8) TMI 395 - DELHI HIGH COURT) relied by the advocate relates to COEPOSA detention and not pertaining to seizure and confiscation of gold under the Customs Act. Therefore, the citations are not relevant to the facts of this case. Further, in the case of T.B. Lakshminarayanan (2011 (1) TMI 1341 - MADRAS HIGH COURT), the Hon ble High Court on an identical case of smuggling gold biscuits ordered for predeposit of 50% of the penalty imposed on them. As far as the second appellant is concerned, we find that adjudicating authority issued a show cause notice alleging that he played a role in abetting, harbouring and dealing with smuggled gold biscuits based on recorded statements and no other evidence has been brought out against him. The only evidence brought out that he mediated, contacted and made calls and was in constant touch with Shri Anand. We find merit in the plea that he has not played a conscious and active role in the entire smuggling activity. Therefore, taking into facts and circumstances of the case, we grant waiver of predeposit of penalty imposed on Shri K. Sivamani.

Summary

Issues:
1. Seizure of foreign marking gold biscuits and subsequent legal proceedings.
2. Confiscation of gold and vehicle under Customs Act.
3. Imposition of penalties on individuals involved in smuggling.
4. Appeal for waiver of predeposit of penalties.

Analysis:
1. The case involved the seizure of 156 foreign marking gold biscuits weighing 15.600 gms from a vehicle intercepted by Customs officers. The Commissioner of Customs issued a show cause notice leading to absolute confiscation of the gold under Sections 111(d) and 111(e) of the Customs Act, along with confiscation of the vehicle and imposition of penalties on the individuals involved. The appellants appealed against the order and sought waiver of predeposit.

2. The advocates for the appellants argued that the order was based on statements recorded under Section 108 of the Customs Act, which were in Tamil and not properly explained to the appellants. They cited legal precedents to support their argument for waiver of predeposit, emphasizing that once goods are confiscated, predeposit of penalty should be waived. However, the Tribunal found that the citations provided were not directly relevant to the case at hand, as they pertained to different legal contexts.

3. The Tribunal noted that the adjudicating authority had provided detailed findings on the smuggling of gold by one of the appellants. It was established that the gold was physically concealed in the vehicle, and valid evidence such as mahazars and statements under Section 108 of the Customs Act were presented. The Tribunal also considered a previous judgment where 50% predeposit was ordered in a similar smuggling case. Consequently, the Tribunal directed one appellant to predeposit a sum of Rs. 25,00,000 and waived the balance penalty. For the second appellant, who was alleged to have abetted the smuggling, the Tribunal granted a waiver of predeposit based on the lack of evidence showing a conscious and active role in the smuggling activity.

4. In conclusion, the Tribunal upheld the confiscation of gold and the vehicle while imposing penalties on the individuals involved in the smuggling case. The decision on predeposit waivers was made based on the specific roles and evidence presented for each appellant, ensuring a fair and balanced approach to the legal proceedings.