9911796707
TMI Blog2006 (5) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Sales Invoice No. 2063, dated 23-7-1996 of M/s. ALNAVAS STORE, Singapore evidencing sale of 42 FMG bars for Singapore $ 86184 to Shri Chinnakaruppan holding Indian Passport No. 425846. (ii) Tax Invoice No. CS-111834, dated 22-7-1996 of M/s. SOON HUAT GOLDSMITH PTE LTD., Singapore evidencing purchase of gold ornaments for Singapore $ 990 by Shri Chinnakaruppan. (iii) Tax Invoice No. CS-112388, dated 28-7-1996 of M/s. SOON HUAT GOLDSMITH PTE LTD., Singapore evidencing purchase of gold ornaments for Singapore $1200 by Shri Chinnakaruppan. (iv) Econony Class Boarding Pass dated 29-7-1996 of M/s. Singapore Airlines for Flight No. SQ 410, issued to Shri Chinnakaruppan for travel from Singapore to Madras. When questioned about the gold bars and ornaments mentioned in the aforesaid documents, Shri Chinnakaruppan took out 16 gold bars which had the markings SUISSE 10 Tolas, 999.0 ESSAYER FONDEUR and the gold ornaments (which were also 16 in No.) were found to have the marking 916 . Shri Chinnakaruppan told the officers that, out of the 42 gold bars purchased by him under the aforementioned sale invoice dated 23-7-1996, he had handed over 26 gold bars to one Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96; that he cleared the gold bars and ornaments at Madras without declaring the same to Customs and without payment of Customs duty; that he stayed at V.M. Tours Travels of Shri Sekar at Royapettah with his baggages; that he left Royapettah around 8.30 p.m. on 31-7-1996 along with the said Shri Sekar by his ambassador car hired for Rs. 2,500/-; that he had secreted the said 16 gold bars and 16 gold ornaments in his pant pockets; that the car was driven by Shri Muthu and that it was intercepted at Tholudur by Customs officers at about 8.30 a.m. on 1-8-1996. Shri Chinnakaruppan further stated that on interrogation, he took out the gold bars and ornaments and the connected purchase documents and handed over the same to the officers and that he could not produce any document evidencing duty payment or licit nature of the gold bars and ornaments. Shri Chinnakaruppan was arrested on 2-8-1996 and was remanded to judicial custody on the same date. 2. Shri Chinnakaruppan retracted the above statement in a petition dated 6-8-1996 sent from jail, wherein he stated that he had stayed at Singapore with his friend Shri Arumugam; that he purchased gold ornaments and some clothes with the mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt No. 14285, dated 31-7-1996. Shri Balasubramanian s address shown in Baggage Receipt No. 14732, dated 31-7-1996 was C/o Abu Palace Hotel, Madras-84 but the General Manager of this hotel stated that nobody in the name of Balasubramanian had stayed in the hotel during the relevant period. The Customs officers recovered the passport of Shri Chinnakaruppan from M/s. DD Travels, Madras, through whom arrangements were being made for his further visit to Singapore. However, their efforts to apprehend Balasubramanian and Asumugam did not succeed. Shri Chinnakaruppan s retractions were rejected as afterthought, by the Customs authorities. The seized gold bass and ornaments were certified, by the Chemical Examiner, to be of purity 99.9% and 83 to 91.8% respectively. 3. On the basis of the results of investigations, a show-cause notice dated 27-11-1996 was issued to S/Shri Chinnakaruppan, Balasubramanian and Arumugam for confiscating the gold bars and ornaments and imposing penalties on the noticees. The proposals in the show-cause notice were contested. S/Shri G. Sivakumar (mahazar witness), R. Sekar (owner of car), Muthu (driver), C. Nagarajan, Superintendent of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that any gold bars were not actually purchased by him under any of these documents which were collected only for the purpose of obtaining re-entry visa. In any case, according to ld. Counsel, at least the benefit of doubt should have been given to Shri Chinnakaruppan. In support of the various points raised by him, ld. Counsel has relied on the following decisions:- (i) Shankaria v. State of Rajasthan (AIR 1978 S.C. 1248) - [A confession is an efficacious proof of guilt only if it was voluntarily and truthfully made. If it appears to the Court to have been caused by inducement, threat or promise, it must be rejected]. (ii) Sevantilal Karsondas Modi v. State of Maharashtra [1999 (109) E.L.T. 41 (S.C.) = AIR 1979 S.C. 705] [If confession appears to remain untrue in any material particulars or having been caused by any inducement, threat or promise, it is hit by the mandate of Section 24 of the Evidence Act]. (iii) E. Kesavan v. Assistant Collector of Customs [1987 (27) E.L.T. 640 (Mad.)] [Confession invalid; if given under compulsion, coercion or threat]. (iv) Nathu v. State of Uttar Pradesh (AIR 1956 S.C. 56) [Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly at the time of their cross-examination before the adjudicating authority, was also not valid. Ld. SDR also resisted the appellants challenge to the mahazar proceedings. In this connection, she relied on the unrebutted oral evidence of the Superintendent and Inspectors of Central Excise. With reference to Shri Balasubramanian s baggage receipt, she wondered as to why it was not delivered along with the 16 gold bars to Shri Chinnakaruppan by Shri Balasubramanian, if the story of delivery of 16 gold bars to Shri Ciiinnakaruppan by Shri Balasubramanian on 31-7-1996 was true. She opined that, if the story was true, an acknowledgment of receipt would have been taken from Shri Chinnakaruppan by Shri Balasubramanian. Ld. SDR also pointed out that the appellants could not produce Shri Balasubramanian s baggage receipt in original to the adjudicating authority. In the circumstances, the appellants should be held to have failed to make out a case against confiscation of the gold bars and ornaments. On the part of the department, ld. SDR argued, it was not necessary to prove their case with mathematical precision as held by the Supreme Court in Collector of Customs, Madras Ors. v. D. Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, while Shri Chinnakaruppan was carrying the 16 gold bars in his pants pockets from the airport to his native place on 1-8-1996, the car in which he was travelling along with its owner Shri R. Sekar was intercepted by Customs officers and the gold bars along with gold ornaments were seized by them. The department s case is that 16 gold bars seized from Shri Chinnakaruppan were a part of 42 gold bars purchased by him from ALNAVAS STORE, Singapore under Invoice No. 2063, dated 23-7-1996 and that the gold ornaments seized from him had also been purchased from Singapore under 2 invoices dated 22-7-1996 and 28-7-1996. All the 3 invoices were recovered from Shri Chinnakaruppan by the Customs officers. It is said that, while he was at Singapore, he had given 26 out of the 42 FMG gold bars to Shri Arumugam and brought the rest of the gold (16 bars) to India on 29-7-1996. As no document evidencing payment of Customs duty was produced by Shri Chinnakaruppan, who admitted that he had clandestinely brought the 16 gold bars and 16 gold ornaments to India without declaring the same to Customs and without paying Customs duty, the goods were seized and a case of smuggling of gold was booked ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of obtaining re-entry visa. Was Shri Chinnakaruppan attempting to defraud the visa-granting authority by producing (as proof of purchase of gold) a fake invoice, i.e., an invoice which was obtained without purchasing gold? We cannot assume that he was attempting to do so. On the other hand, while dealing with his appeal, we must postulate that he is honest and law-abiding. Hence the above invoice must be accepted as genuine document covering purchase of gold by Shri Chinnakaruppan. Had it been the intention of Shri Chinnakaruppan to use the invoice for the purpose of obtaining re-entry visa, he would have produced the same along with his passport to his travel agents. It is on record that his passport was recovered from M/s. D.D. Travels, who had been approached by Shri Chinnakaruppan for travel documents to visit Singapore again. But there is no material on record to indicate that the said travel agents had requisitioned any document of the above kind for the purpose of obtaining re-entry visa or that Shri Chinnakaruppan himself had offered to produce the above document to the travel agents. In the circumstances, we reject the plea that Invoice No. 2063, dated 23-7-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en coerced into giving involuntary statements on 1-8-1996. Hence their retractions cannot be admitted into evidence. 10. It was claimed by ld. Counsel that Shri Chinnakaruppan was kept in prolonged custody of the Customs officers before his statement dated 2-8-1996 was recorded and, ipso facto, the statement was involuntary. After careful examination of the facts of the case, we have found that Shri Chinnakaruppan was arrested on 2-8-1996 and produced before the Judicial Magistrate on the same day. From the time at which the car (in which he was traveling with the contraband) was intercepted to the time of his arrest, he was with the Customs officers in connection with mahazar proceedings and recording of his statement, which period cannot be said to be one of illegal detention or unlawful custody of Shri Chinnakaruppan. It was the time required for the Customs officers to complete their elaborate statutory proceedings. There is no evidence on record to show that, during such period, Shri Chinnakaruppan was threatened, beaten up or otherwise ill-treated by the Customs officers. Hence the plea of prolonged custody, coercion etc, made in Shri Chinnakaruppan s appeal is untenable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (note) to this effect to Shri Chinnakaruppan. But this chit was not found in Shri Chinnakaruppan s possession when he was intercepted by Customs officers vide mahazar dated 1-8-1996, nor was any other documentary evidence of transfer of gold between Shri Balasubramanian and Shri Chinnakaruppan available. Neither of them could produce any eye witness to such transfer also. Hence the above claim of Shri Balasubramanian is only an ipse dixit with no evidence whatsoever. It is also pertinent to note that the above baggage receipt was not produced in original before the Commissioner even at the stage of adjudication of the case. In the circumstances, it has to be held that no correlation was established between the gold bars seized from Shri Chinnakaruppan by the Customs officers and those covered by Baggage Receipt No. 14372, dated 31-7-1996 of Shri Balasubramanian. Thus the correlation already established between the seized gold bars and Invoice No. 2063, dated 23-7-1996 remains unaffected by Shri Balasubramanian s Baggage Receipt and allied statements/affidavits/submissions, and Shri Chinnakaruppan s retractions remain unworthy. We have rejected all the retractions by applying the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the seized gold bars is upheld, but with an option for redemption. This decision will apply to the gold ornaments, in respect of which no evidence was adduced by Shri Chinnakaruppan to support his claim that the goods were declared to the Customs authorities and legally cleared. The lower authority has not invoked Section 125 of the Customs Act to give option for redemption of the goods on payment of fine in lieu of confiscation. We direct the Commissioner of Customs to give this option to Shri Chinnakaruppan and determine an amount of fine in terms of Section 125, for the purpose. He shall be given a reasonable opportunity of being heard in connection with the quantification of redemption fine and duty to be levied in terms of the said provision. As regards penalty on Shri Chinnakaruppan under Section 112, we are of the view that its quantum determined by the Commissioner is harshly excessive. In the circumstances of the case, we reduce it to Rs. One lakh. 14. We have already ruled out any connection between Shri Balasubramanian s baggage receipt and the gold bars seized from Shri Chinnakaruppan inasmuch as the appellants failed to dislodge the correlation established b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
