2024 (3) TMI 417 - AT - Customs

Levy of penalty - Smuggling of Gold - seizure - Commissioner (Appels) set aside the penalty - Burden of proof is on the Department - evidence to prove the owner of the confiscated gold - HELD THAT - We find that merely because a person had filed a Writ Petition in the High Court and had not responded to the summons by the officers till the dismissal of the Writ Petition by the High Court, no inference can be drawn that he was guilty or complicit in dealing with the smuggled gold. Ld AR has mis-understood the expression so far as may be to mean that the adjudicating authority may or may not follow the procedure u/s 138B. All that it means is that they apply to other proceedings as they apply to prosecutions. However, some words in sub-section (1) such as court do not apply to the other adjudication proceedings and in such case, the court must be replaced by adjudicating authority and the provisions may be read accordingly. So far as may be only means with appropriate substitution of words as they apply to adjudication proceedings and do not mean that it is upto the adjudicating authority to follow the procedure u/s 138B or not. Thus, the two statements cannot be relied upon. As far as the telephonic calls are concerned, learned Senior Counsel does not dispute that Shri Amit Goel not only knew both Shri Rajesh Kumar (as an operator in the gold market) and Shri Pankaj Kumar (as his employee) but also that he would frequently call them. He also does not deny that Shri Goel had called them in the morning of the day of seizure. His explanation is that he called Shri Pankaj Kumar because he had not reported for work and called Shri Rajesh Kumar to enquire about the gold prices. These were part of the statement of Shri Amit Goel. We find that these are plausible explanations for the calls made. It does not emerge from the investigation as to what was discussed during the calls because the CDRS do not give recording of what was discussed but only who called whom and for how long. It also does not appear that during investigation, Shri Pankaj Kumar and Shri Rajesh Kumar were either questioned about what was discussed in that morning on phone with Shri Amit Goel nor were they confronted with the statement of Shri Amit Goel on this issue. This leaves the statement of Shri Rajesh Kumar who was examined and cross examined and there were sufficient contradictions in his statements during cross examination. Searches were conducted at both the residence and office premises of the respondent quite early during the investigation but nothing incriminating was found. Setting aside the penalty - Revenue s prayer to restore the penalty imposed on Shri Amit Goel by setting aside the impugned order is based on the fact that Shri Goel had called Shri Rajesh Kumar and Shri Pankaj Kumar on that day and based on four statements. In the absence of any evidence to the contrary, the plausible explanation regarding the reasons for the calls must be accepted. Of the four statements, two are not relevant as the procedure followed u/s 138B was not followed. Of the remaining two statements, Shri Pankaj Kumar retracted his statement and stood by the retraction during the cross-examination. There was no re-examination by the department to disprove this hostile evidence. This leaves with the statement of Shri Rajesh Kumar who had, during cross-examination, contradicted himself. Hence, this evidence is not sufficient to hold that Shri Amit Goel was the owner of the confiscated gold and that had sent it to Shri Rajesh Kumar through Shri Pankaj Kumar and therefore, restore the penalty imposed on him u/s 112. Thus, we uphold the impugned order and dismiss Revenue s appeal. The miscellaneous application also stands disposed of.

Summary

Issues Involved:
1. Legality of the penalty imposed on Shri Amit Goel.
2. Confiscation of gold and cash.
3. Relevance and admissibility of statements under Section 138B of the Customs Act.
4. Reliance on call data records (CDRs) as evidence.

Summary:

1. Legality of the Penalty Imposed on Shri Amit Goel:
The Revenue challenged the order setting aside the penalty of Rs. 80,00,000/- imposed on Shri Amit Goel. The Commissioner (Appeals) had set aside the penalty on Shri Amit Goel while upholding the confiscation of gold and cash and the penalty on Shri Rajesh Kumar. The Tribunal found that the evidence was insufficient to hold Shri Amit Goel responsible for the confiscated gold and cash, thereby upholding the impugned order and dismissing the Revenue's appeal.

2. Confiscation of Gold and Cash:
The Customs officers seized 20 Kg of foreign marked gold and Rs. 6.44 crores from Shri Rajesh Kumar's shop, believing them to be smuggled and liable for confiscation under Sections 111 and 121 of the Customs Act. Both Shri Rajesh Kumar and Shri Amit Goel did not contest the confiscation. The Tribunal noted that the confiscation was not questioned by either party and upheld the confiscation as per the original and appellate orders.

3. Relevance and Admissibility of Statements under Section 138B of the Customs Act:
The Tribunal emphasized the importance of following Section 138B for the relevancy of statements. It was noted that the statements of Shri Manoj Kumar and Shri Ajay Mahto could not be relied upon as they were not put through the procedure prescribed under Section 138B. The Tribunal clarified that the procedure under Section 138B must be followed in adjudication proceedings as well, with appropriate substitution of terms like 'court' with 'adjudicating authority.'

4. Reliance on Call Data Records (CDRs) as Evidence:
The Tribunal found that the CDRs showed calls between Shri Amit Goel, Shri Rajesh Kumar, and Shri Pankaj Kumar but did not provide details of the conversations. Shri Amit Goel explained that the calls were made to inquire about gold prices and to check on his employee. The Tribunal accepted these explanations as plausible and noted that the CDRs alone were insufficient to establish guilt.

Conclusion:
The Tribunal upheld the impugned order setting aside the penalty on Shri Amit Goel, dismissed the Revenue's appeal, and disposed of the miscellaneous application. The evidence presented was deemed insufficient to restore the penalty imposed on Shri Amit Goel.