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TMI Blog2012 (9) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were smuggled. Pursuant to information, on the same day the officers further searched the premises of Room No. 12, 4th Floor, Dalal Street, Mumbai Central, which resulted in recovery of 15 foreign marked gold biscuits of 10 tolas each and Indian currency amounting to Rs. 8,50,000/- in the presence of its occupants namely, Shri Babulal Jain, Shri Pravin T Joshi and Shri Appuram Bishnoi. As the occupants could not produce any documents for the licit import, acquisition and possession of the said 15 gold biscuits, the same were seized on the reasonable belief that they were smuggled. Shri Babulal Jain and Shri Pravin T Joshi also stated that the Indian Currency was part of the sale proceeds of the smuggled gold. One scooter bearing Reg. No. MH-05-B-120 being used for transportation of the smuggled gold by the above occupants, was also seized along with 15 gold biscuits and Indian currency. 2.2 The statements of Shri Satpute was recorded on 15-5-1993 and 16-5-1993 under Section 108 of the Customs Act, 1962, wherein, he inter alia, admitted that he knew one person known as "Maharaj" who was dealing in smuggled gold biscuits and on 14-5-1993, when he contacted Maharaj for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was done by the Commissioner of Customs (Prev.), Mumbai vide the impugned order dated 31-5-2001. In the impugned order the Commissioner has ordered for, - (i) absolute confiscation of 30 gold bars of foreign origin totally weighting 3499.500 grams valued at Rs. 15,60,000/- under Section 111(d) of Customs Act, 1962; (ii) confiscation of Indian Currency of Rs. 8.5 lakhs under Section 121 of the Customs Act, 1962; (iii) absolute confiscation of Scooter bearing Reg. No. MH-05-B-120 under Section 115(2) of the Customs Act, 1962; (iv) imposed penalties under Section 112(b) of the Customs Act, 1962 for an amount of Rs. 2.5 lakhs on Shri Ramdas B Satpute, Rs. 5.00 lakhs on Shri Babulal S. Jain, Rs. 5.00 lakhs on Shri Nainmal Joshi, Rs. 5.00 lakhs on Puranmal Patel, Rs. 5,000/- each on Shri Pravinkumar Joshi and Shri Appuram Bishnoi. 3. Shri Nainmal Joshi, Pravin Kumar Joshi and Shri Appuram Bishnoi did not file any appeal against the said order. The appeal of Shri Puranmal Patel was allowed by this Tribunal vide order No. C-II/2049-52/WZB/2002, dated 28-6-2002, while considering the application for stay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Das K. Joshi v. C.C. 1992 (61) E.L.T. 172 (S.C.), S. Rajagopal v. C.C., Trichy - 2007 (219) E.L.T. 435 (Tri.-Chennai), Vinod Solanki v. U.O.I. - 2009 (233) E.L.T. 157 (S.C.) = 2009 (13) S.T.R. 337 (S.C.), Shree Prakash Textiles Guj. Pvt. Ltd. v. U.O.I. - 1987 (27) E.L.T. 393, Kapoor Jewellers Pvt. Ltd. v. C.C. (Prev.), Mumbai, 2006 (205) E.L.T. 614 (Tri.-Mumbai), Shantilal Mehta v. U.O.I. - 1983 (14) E.L.T. 1715 (Del.) in support of his contentions. 5. The Ld. DR appearing for the department reiterates the findings given in the impugned order and relies on the following judgments in support of his contention, namely, S.G. Rajadhyakshya v. Leela Daulatram Uttamchandani, 1991 (51) E.L.T. 3 (Bom.), CCE v. K.I. Pavunni - 1989 (39) E.L.T. 38 (Kerala) & CCE, Madras v. Systems & Components Pvt. Ltd. - 2004 (165) E.L.T. 136 (S.C.). 6. We have carefully considered the rival submissions. 7. Even though the appellants have produced a baggage receipt showing the import of 30 pieces of gold biscuits totally weighting 3499.500 grams by one Shri T.K. Manoharan of Trichur, Kerala, there is no evidence produced by the appellants to show that the foreign marked gold bars seized fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to show that he actually undertook any transaction with Shri T.K. Manoharan. Shri Babulal Jain does not have his own premises from where he undertook purchase or sale the gold biscuits. If that be so, how can Shri T.K.Manoharan come in contact with Shri Babulal Jain and offer to sell him gold biscuits, which had been brought from abroad. On the other hand, the statement of Shri Nainmal Joshi recorded by the department on 8-11-1993 clearly indicates that the gold biscuits were procured from Shri Puranmal Patel. This position has also been admitted by Shri Babulal Jain in his own statement recorded on 15-5-1993 and later on 7-6-1993. In these statements. Shri Babulal Jain had also admitted that the baggage receipt was purchased from the market by his friend after his arrest by the Customs Officers. In the absence of any other evidence to establish the transaction of sale and purchase of gold biscuits from Shri T.K. Manoharan by Shri Babulal Jain, the only reasonable conclusion that can be drawn is that the foreign marked gold biscuits under seizure is in no way connected with the baggage receipt. It is also on record that Shri Babulal Jain did not make any payment/investment in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of Sri Nainmal Joshi alias Maharaj as per the directions of Sri Babulal Jain and Sri Babaulal Jain has obtained the material from one Sri Puranmal Patel. In the absence of any other evidence showing licit procurement of the gold either from Sri T.K. Manoharan or from anybody else, the only reasonable conclusion that can be drawn is that these are smuggled gold. As regards the issue relating to release of gold on payment of fine, once it is held the goods are prohibited goods, it is left to the discretion of the adjudicating authority to decide whether to release the same on payment of fine or not. In the instant case, it is seen that gold is permitted to be imported only subject to certain terms and conditions. If these terms and conditions are not satisfied, they have to held as prohibited goods as defined in the Customs Act as has been held by the Hon'ble Apex Court in the case of Om Prakash Bhatia v. CCE, Delhi [2003 (155) E.L.T. 423 (S.C.)]. Hence, there is no vested right accruing to the appellants for redemption on payment of fine. It should also be noted that gold is a commodity whose value has appreciated substantially over the time period involved in this case and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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