2021 (3) TMI 1111 - AT - Customs

Smuggling - Gold - Seizure of gold - period of limitation and issuance of prior notice under Section 155(2) of Customs Act - burden of proof - admissible evidence or not - HELD THAT - The statement given on the date of incident at the time of recovery of the impugned gold, the statement was recorded under Section 108 of the Customs Act, 1962 which is exculpatory. Further, the statement of Smt. Usha Devi, wife of the appellant was also recorded under Section 108 of the Customs Act, 1962 who claims to be the owner of the gold in question. In support of her statement, she has produced various corroborative evidences, but all these were discarded by the Revenue without giving in credence to them which is not correct. Further, the statements of the persons recorded under Section 108 of the Customs Act, 1962 heavily relied upon by the Revenue have stated that the 400 grams of the gold seized on 06.07.2015 from the vehicle of the appellant does not belong to them, which clearly shows that the impugned gold is otherwise belongs to the appellant. The case is of seizure of 394.570 grams of gold seized on 06.07.2015 from the appellant s car bearing registration No. PB-02-AP-3575 and the appellant said that the said gold does not belong to him. Further, the wife of the appellant claims the ownership of the same and the statements stated herein above, have corroborated with evidence by way of certificate issued by the bank that on 26.05.2015, she has operated the locker to take out the gold. Further, railway tickets booked on 06.07.2015 at 11 08 AM for 07.07.2015 for the departure from Amritsar to New Delhi but no credence has been given to these evidences produced by Smt. Usha Devi in her statement and the Revenue has not tried to investigate the matter for verification of the above documents. In these circumstances, benefit of doubt goes in favour of the appellant as the appellant has given the evidence that the impugned gold belongs to Smt. Usha Devi, which has been given to her by her father who has died on 04.11.2012 and the same was kept in bank locker. The appellant has able passed their onus of ownership acquisition of the gold in question. As the appellant has able to prove the source of acquisition of the gold in question, the same cannot be confiscated - absolute confiscation of the gold is set aside and the car in question and imposing penalty on the appellant. Appeal allowed.

Summary

Issues Involved:
1. Imposition of penalty on Smt. Usha Devi.
2. Validity of proceedings against Sh. Vijender Singh under Section 155(2) of the Customs Act, 1962.
3. Confiscation of gold and the Hyundai Santro car.
4. Admissibility of electronic evidence under Section 65A and 65B of the Evidence Act, 1873.

Issue-wise Detailed Analysis:

1. Imposition of Penalty on Smt. Usha Devi:
The adjudicating authority initially refrained from imposing any penalty on Smt. Usha Devi, and no appeal was filed against this decision by the Revenue. The Commissioner (Appeals) overstepped his jurisdiction by imposing a penalty of ?1,00,000 on Smt. Usha Devi. The Tribunal held that the penalty on Smt. Usha Devi was not sustainable and set it aside, allowing her appeal.

2. Validity of Proceedings Against Sh. Vijender Singh Under Section 155(2) of the Customs Act, 1962:
The appellant argued that the proceedings were time-barred as the notice under Section 155(2) was issued on 06.06.2016, beyond the stipulated three months. The Tribunal noted that if the notice under Section 155 was not required, it should not have been issued. Since the notice was issued and was time-barred, the proceedings were deemed invalid.

3. Confiscation of Gold and the Hyundai Santro Car:
The case was based on various statements and WhatsApp messages. The Tribunal found that the statements of the persons involved did not implicate Sh. Vijender Singh in the smuggling of the seized gold. The gold was claimed by Smt. Usha Devi, who provided corroborative evidence, including a bank certificate and railway tickets, supporting her claim. The Tribunal held that the appellant had proven the source of acquisition of the gold, and thus, the gold and the car were not liable for confiscation. Consequently, the Tribunal set aside the order of absolute confiscation and the penalties imposed.

4. Admissibility of Electronic Evidence:
The appellant contended that the WhatsApp messages relied upon by the Revenue were inadmissible as they did not comply with the requirements of Section 65A and 65B of the Evidence Act, 1873. The Tribunal agreed, noting the lack of expert opinion, forensic reports, and proper certification for the electronic evidence. The Tribunal referenced the decision in Anvar P.V. vs. P.K. Basheer, which emphasized the necessity of adhering to the provisions of the Evidence Act for electronic evidence to be admissible.

Conclusion:
The Tribunal allowed the appeals, setting aside the penalties imposed on Smt. Usha Devi and Sh. Vijender Singh, and the confiscation of the gold and the Hyundai Santro car. The Tribunal emphasized the importance of adhering to procedural requirements and the proper handling of electronic evidence in legal proceedings.