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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 ..... 5/2011-WZB/C-I(CSTB) - Dated:- 20-6-2011 - S/Shri S.S. Kang, P.R. Chandrasekharan, JJ. REPRESENTED BY :Shri Mayur Shroff, Advocate, for the Appellant. Shri B.P. Pereira, JDR, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. There are two appeals which are directed against the order No. CCP/ADJ/ACB/28/001, dated 31-5-2001 passed by the Commissioner of Customs (Preventive) Mumbai. 2. Briefly stated the facts of the case are as follows :- 2.1 On 15-5-1993 the officers of Marine and Preventive Wing Mumbai apprehended one Shri Ramdas Bhikaji Satpute, and on his personal search, 15 foreign marked gold biscuits of 10 tolas each, totally weighting 1749.750 grams, valued at Rs. 7,80,000/- and one bus ticket to travel from Ahmednagar to Mumbai were recovered. As Shri Satpute could not produce any legal documents for the licit import, acquisition, possession of the said 15 foreign marked gold biscuits, the same were seized on the reasonable belief 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op of Shri Nainmal Joshi were also recorded and they admitted that they were employed by Shri Nainmal Joshi for taking and effecting deliveries of foreign marked gold biscuits and confirmed the above transactions. All the above four people were arrested and produced before the Chief Metropolitan Magistrate on 17-5-1993, who remanded all the four people to judicial custody. Subsequently on 19-5-1993 both Shri Ramdas Satpute and Shri Babulal Jain submitted retraction letters before the Court and also produced a baggage receipt dated 9-4-1993 of one Shri T.K. Manoharan of Trichur, Kerala showing import of 30 pieces of gold biscuits of 10 tolas each weighting totally 3499.500 gram on payment of Customs duty of Rs. 76,989/-. 2.3 A show-cause notice dated 12-11-1993 was issued, which was adjudicated by the Collector of Customs (Prev.) Mumbai vide order dated 26-12-1994. On appeal by the parties concerned before this Tribunal, the case was remanded for de novo adjudication, which 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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice is bad in law. (4) The statements recorded by the Customs Officers and the appellants on 15-5-1993 and 16-5-1993 were taken under duress and coercion and these were retracted on 17-5-1993 itself before the Chief Metropolitan Magistrate and, therefore, reliance on these statements by the Ld. Commissioner to allege that the gold is smuggled is not legally sustainable. (5) The Customs Officers have not recorded any statement from Shri T.K. Manoharan from whom the gold bars were purchased. Therefore, the investigation is inconclusive and based on such incomplete investigation, no definite conclusion can be arrived at. (6) The Ld. Counsel also relied on the following judgments namely, SK Chains v. C.C. - 2001 (127) E.L.T. 415 (Tri.-Mum.), Suresh Bhosle v. C.C., Kolkata - 2009 (246) E.L.T. 77 (Cal.), Hargovind 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.-Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shri T.K. Manoharan came over and sold the gold biscuits imported by him. There is no evidence to show how Sri Satpute came in contact with Shri T.K. Manoharan and undertook the transaction with him and how did he make the payment to Shri T.K. Manoharan. In fact the seizure of Indian currency worth Rs. 8.5 lakhs clearly establishes that Shri Satpute had made payments to Shri Babulal Jain for the purchase of foreign marked gold biscuits, which clearly establishes that the 15 foreign marked gold biscuits seized from Shri Ramdas Satpute has no co-relation whatsoever with the baggage receipt of Shri T.K. Manoharan subsequently produced. Similarly, for the receipt of 15 foreign marked gold biscuits seized from the premises at Dalal Street, Mumbai Central, from Shri Babulal Jain, there is no evidence led by the appellant 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements and facts on record. The counsel for the appellant has cited a number of judicial pronouncements in support of his argument that the baggage receipt produced by the appellant shows that the goods have been licitly imported and therefore not liable to confiscation. The counsel has also argued that even if it is held to be liable to confiscation, there was no need to absolutely confiscate the same and an opportunity to redeem the same should be given. We have considered these submissions. The facts of the present case are completely different from those involved in the above judgments. In the instant case, no reliable evidence has been led before us to conclude that the baggage receipt pertained to the goods under seizure, especially in view of the fact that Sri Satpute has received the material from the premises 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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