2024 (1) TMI 986 - AT - Customs

Confiscation of seized logs - imposition of penalties - Smuggling - Red Sander Wood Logs - prohibited goods or not - reliance placed on confessional statements of the appellant - HELD THAT - It is on record that appellant has disputed that the statements which the DRI officers used against him were obtained by practicing duress, torture and by way beaten up. When an objection is made that a statements is obtained unfairly, it is for the Adjudicating authority to first decide whether the statement was voluntary and this principle of law is quiet settled and well known now. Further Ld. Adjudicating authority totally ignored the retraction of the statement by the appellant through affidavit and denied their involvement in the offence which was totally overlooked by the Ld. Commissioner in impugned order. Further, it is found that no cross-examination of certain witnesses viz. Shri Rajesh Subramaniam and Shri Anwar Khan and the officers of the DRI asked for was extended to the appellant. Learned Adjudicating authority cannot brush aside the request for cross-examination of the relied upon witnesses/investigating officers. If for any reason the cross-examination of the witness cannot be extended then the adjudicating authority has to intimate the appellant about such rejection by a separate letter as is now settled legal position. It is well settled that a person cannot be penalized merely on the basis of a circumstantial evidence and assumption and presumption and ignoring the provisions of law. From the records of the cross-examination of Shri Mahendra Jain, Proprietor of M/s Nidhi Marble, Udaipur, Shri Naresh Bolya, Managing Director of M/s Parth Natural Stones Pvt. Ltd., Udaipur, Shri Sunil Kumar Agrawal, Manager Accounts of M/s Madhusudan Marbles Pvt. Ltd., Udaipur and Shri Mukesh Kabra, Director of M/s Madhusudan Marbles Pvt. Ltd., Udaipur, it is found that the appellant had absolutely no role to play in the alleged smuggling of red sander logs - there is no evidence to show that the appellant had actually assisted in loading red sanders or tampering the container or they were even aware that red sanders had been filled into the container somewhere on the way. Under these circumstances, in this case, apparently penalty has been imposed on the appellant on the ground that he has abetted in stuffing and attempted export of red sanders in the container - thus, penalties imposed on the appellant are not sustainable and the same is set aside. Absolute confiscation of the cash - HELD THAT - In the case on hand, there is absolutely no evidence to show that the said sum was relating to the sale proceeds of smuggled goods, which were sold by the appellant, who was having knowledge or reason to believe that the goods are smuggled goods. On going through the observations made by the learned Adjudicating Authority, we are in disagreement with that as in the present case the Adjudicating Authority and revenue has failed to prove that the cash recovered is the sale proceeds of past consignment of smuggled goods. It is observed that appellant produce the records before the adjudicating authority to justify that the cash recovered from the residential premises. Appellant produced the banks statements evidencing withdrawal of cash from his bank accounts. Appellant produced the Bank statements. If the evidence produced by the appellant were not acceptable then the same could have been countered on the basis of some positive evidence and cannot be brushed aside on presumption. The impugned order qua absolute confiscation of cash seized is contrary to law which shows that the Adjudicating Authority has not applied its mind for absolute confiscation of currency seized during the course of investigation. Therefore, it is held that the seized currency during the course of investigation cannot be confiscated without proving that the said seized currency is the sale proceeds of smuggled goods. Therefore, it is held that absolute confiscation of the seized currency of Rs. 7,50,000/- is not sustainable accordingly, the confiscation is set aside and the Adjudicating Authority is directed to release the said amount to the appellant. The penalties are set aside - Appeal is allowed.

Summary

Issues Involved:
1. Confiscation of Red Sander Logs and other goods.
2. Imposition of penalties on the appellant.
3. Confiscation of cash seized from the appellant's residence.

Summary:

1. Confiscation of Red Sander Logs and Other Goods:
The appellant was implicated in a case where red sander logs, prohibited for export, were found concealed in a container initially loaded with green marble slabs. The container was tampered with, and red sander logs were substituted for the marble slabs. The goods, along with the trailer and trucks, were seized and samples confirmed the presence of red sander wood. The Commissioner ordered the absolute confiscation of the red sander logs and the conveyances used, with an option for redemption on payment of a fine.

2. Imposition of Penalties on the Appellant:
The appellant, proprietor of M/s H.R. Containers, was penalized Rs. 50,00,000/- under Section 114(i) and Rs. 5,00,000/- under Section 114AA of the Customs Act for his involvement in the smuggling attempt. The appellant argued that his role was limited to providing empty containers and arranging transport, with no involvement in the stuffing or transportation of the contraband. The Tribunal found that the penalties were primarily based on the appellant's confessional statements, which he claimed were obtained under duress. The Tribunal noted the lack of corroborative evidence and the failure to provide cross-examination of key witnesses. It was held that the appellant's involvement was not sufficiently proven, and penalties imposed on mere circumstantial evidence and assumptions were not sustainable.

3. Confiscation of Cash Seized from the Appellant's Residence:
The Commissioner also ordered the absolute confiscation of Rs. 7,50,000/- found at the appellant's residence, alleging it was proceeds from smuggling activities. The appellant contended that the money was withdrawn from his bank accounts for renovation purposes, supported by bank statements. The Tribunal observed that there was no evidence linking the cash to smuggling proceeds and that the revenue failed to prove the cash was related to illegal activities. Citing legal precedents, the Tribunal held that the confiscation of the cash was not justified and ordered its release to the appellant.

Conclusion:
The Tribunal set aside the penalties and the confiscation of the cash, allowing the appeal with consequential relief. The decision emphasized the need for concrete evidence and proper legal procedures in adjudicating such cases.