2023 (5) TMI 822 - AT - Customs

Smuggling - illegal import of Gold - foreign currency - demand based on the statement given by Shri Deepak Batra and Shri Amar Punjabi - no opportunity to cross examine was provided - corroborative statements or not. Opportunity to cross-examine Shri Deepak Batra and Shri Amar Punjabi was not given to the appellants - HELD THAT - Though case was made out based upon the statement of Shri Deepak Batra who was intercepted at International Airport while travelling to Bangkok. He had deposed the connivance of three of the appellants for illegally exporting/importing the foreign currency and gold. Pursuant to his statement, searches were conducted at the appellants premises and their statements were recorded. Three of the appellants, as already observed above, have in full corroboration acknowledged their involvement in the alleged illegal transactions. In several words and several ways three of them have confessed about being involved in the business of illicit trade of export and import of currency and gold. The case therefore is based upon the admissions of the appellants. The admissions have never been retracted by any of the appellants - The foreign currency found in the baggage of Shri Deepak Batra stands corroborated on documents as were recovered during said search. Resultantly, there are no infirmity when opportunity of cross-examining Shri Deepak Batra has been denied to the appellants. The goods in question were not seized from the customs area - HELD THAT - The appellants could not produce any document about discharging their customs duty liability. Accordingly, its stands sufficiently proved that appellants have been procuring gold in sheer violation of the Customs Act and the gold so procured by them has passed the customs area in a concealed manner without payment of customs duty which is sufficient to hold that appellants were involved in smuggling of gold. On 05.07.2017, Shri Deepak Batra was intercepted at the international airport with concealed foreign currency in his baggage. The said currency was mentioned to be handed over to him by three of the appellants which stands proved from the document recovered from the premises of the appellants. Resultantly, irrespective, the currency/gold were not recovered from the customs area, the trading thereof is definitely in violation of the Customs Act and the goods are definitely the smuggled goods. There is no infirmity in the order under challenge while ordering absolute confiscation of foreign currency recovered from Shri Deepak Batra, Indian and foreign currency as recovered from the premises of Shri Janki Dass Madan and the confiscation of the gold recovered from the appellants along with the order of imposition of penalty upon three of the appellants along with Shri Deepak Batra - Appeal dismissed.

Summary

Issues Involved:
1. Opportunity to cross-examine witnesses.
2. Seizure of goods outside customs area.

Summary:

Opportunity to Cross-examine Witnesses:
The appellants contended that they were falsely implicated based on the statements of Shri Deepak Batra and Shri Amar Punjabi, and they were not given the opportunity to cross-examine these witnesses. They argued that the lack of cross-examination rendered the order illegal. However, the Tribunal observed that the case was primarily based on the admissions of the appellants themselves, which were never retracted. The statements made under Section 108 of the Customs Act were corroborated by documentary evidence and recoveries made during searches. The Tribunal held that as per Section 52 of the Indian Evidence Act, admissions do not need further proof, and thus, the denial of cross-examination was justified.

Seizure of Goods Outside Customs Area:
The appellants argued that the provisions of Section 113(d) of the Customs Act could not be invoked as the foreign currency, Indian currency, and gold bars were recovered from their residential premises and not within the customs area. The Tribunal, however, noted that the appellants had admitted to smuggling gold and foreign currency. The recovery of documents from their premises, including invoices from M/s. LCH Bullion Company Ltd., corroborated their involvement in illegal transactions. The Tribunal concluded that despite the goods being recovered outside the customs area, the appellants' actions constituted smuggling under the Customs Act.

Conclusion:
The Tribunal upheld the order of absolute confiscation of foreign currency, Indian currency, and gold recovered from the appellants. It also upheld the imposition of penalties under Sections 112(a), 112(b), and 114AA of the Customs Act. The appeals were dismissed, affirming the findings of the adjudicating authority.