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TMI Blog2012 (9) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... osed on the appellant. 2. The above gold biscuits were seized from one Shri V. Haris by officers of Special Customs Preventive Unit, Kasargod on 17-8-2001. The gold biscuits were found covered with cellophane tapes and kept concealed inside a long cylindrical cloth cover tied around his abdomen. As he could not produce any valid documents to prove licit import of the foreign origin gold biscuits, the same were seized under a mahazar in the presence of independent witnesses. Certain documents were also recovered from the pocket of his shirt. A statement of Shri V. Haris was recorded on 18-8-2001 under Section 108 of the Customs Act, wherein he stated inter alia that he had bought the gold biscuits from Mumbai for one Chalad Nazer by paying foreign currency given by him. He also stated that he had done likewise fifteen times in a period of one year in the past as per directions of the said Nazer and that he got remuneration of Rs. 2500/- per trip. Haris further stated that he was constrained to do so because of his acute financial difficulties. He also disclosed that, on an earlier occasion, he was arrested in connection with seizure of four gold biscuits in Belgaum and detained un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Investigating Officer and gave a statement under Section 108 of the Customs Act, wherein he stated details of his journeys and stay at places like Mumbai, Ajmeer, Ernakulam, Bangalore etc. during the months of August, September and October 2001 after the seizure of 34 gold biscuits from his brother-in-law Shri V. Haris. He revealed that he was involved in two cases, one registered by Special Customs Preventive Unit, Kannur and the other registered by the Central Bureau of Investigation. He admitted that phone No. 769207 belonged to him and was installed at his cassette shop at Kannur. He admitted that he had made frequent phone calls to a foreign currency dealer as well as a foreign goods dealer, both stationed at Calicut. He also admitted that he had given Rs. 3 lakhs to Shri V. Haris for purchase of gold. Shri P.M. Abdul Nazer was arrested on 15-10-2001 itself on the basis of reasonable belief that the whole money for the purchase of the 34 foreign gold biscuits seized from his brother-in-law Shri V. Haris was arranged by Shri Abdul Nazer. He was produced before the Judicial Magistrate and was remanded to judicial custody. Eventually he was enlarged on bail. In a subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel submitted that an option for redemption of the gold biscuits on payment of a reasonable amount of fine should have been given in this case. In this connection, the learned counsel relied on the following decisions : (1) Yakub Ibrahim Yusuf v. C.C., Mumbai, 2011 (263) E.L.T. 685 (Tri.-Mumbai) (2) Order dated 5-10-2010 of the Hon ble High Court of Kerala in W.A. No. 1711/2010 (Reji Cheriyan v. C.C., Kochi) (3) P. Sinnasamy v. C.C., Chennai, 2007 (220) E.L.T. 308 (Tri.-Chennai) (4) Krishna Kumari v. C.C., Chennai, 2008 (229) E.L.T. 222 (Tri.-Chennai) (5) S. Rajagopal v. C.C., Trichy, 2007 (219) E.L.T. 435 (Tri.- Chennai) (6) M. Arumugam v. C.C., Tiruchirapalli, 2007 (220) E.L.T. 311 (Tri.-Chennai) 5.1 Learned counsel also challenged the penalty and its quantum. According to him, the amount of penalty imposed on the appellant is disproportionate to the value of the confiscated goods. In this connection also, he referred to some of the aforesaid decisions. 6. Learned SDR submitted that the gold biscuits under seizure were prohibited goods within the first part of Section 125 of the Customs Act as held by the Hon ble Calcutta High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave carefully considered the submissions. The facts noted in the mahazar dated 18-8-2001 are not in dispute. 34 gold biscuits of foreign origin were recovered from V. Haris who had concealed the goods around his abdomen. He stated under Section 108 of the Customs Act that he was bringing the gold biscuits from Mumbai as instructed by the appellant and also that the money for purchasing the same was supplied by the appellant. When the appellant was confronted with this statement of Haris, he admitted under Section 108 of the Customs Act that he had given Rs. 3 lakhs to his brother-in-law Haris. The appellant further stated that he arranged another sum of Rs. 2 lakhs to be given to Haris through Chalad Nazer. In a subsequent statement, however, the appellant stated that the above amounts were supplied to Haris as required by him (Haris). Nevertheless, from the statements recorded under Section 108 of the Customs Act in this case, it is clearly seen that the appellant was in constant telephonic communication with one Shankar of Mumbai around the time when the gold biscuits were collected by Haris at Mumbai and that these goods were supplied to Haris by Shankar. It is also evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 1983 (13) E.L.T. 1439 (S.C.). Md. Omer had claimed to be only a carrier and had not claimed ownership of the gold. He also could not produce any documentary evidence of licit nature of the gold. The Tribunal held that the gold was to be treated as prohibited for purposes of Section 111(d) of the Customs Act and hence absolute confiscation under Section 125 of the Act could not be questioned. This view was upheld by the Apex Court. In the case of Uma Shankar Verma (supra), the Hon ble Calcutta High Court held that gold was a prohibited item within the first part of Section 125 of the Customs Act. Thus the case law cited by the learned SDR is enough to demolish the appellant s attempt to show that the 34 gold biscuits in this case were to be treated as restricted items redeemable under Section 125 of the Act. 7.2 The Tribunal s decision in Yakub Ibrahim Yusuf s case allowing redemption of gold against payment of fine is not applicable to the facts of the present case. No different are the other decisions of the Tribunal cited by the learned counsel. The order of the Hon ble Kerala High Court in Reji Cheriyan s case does not provide any ruling of general applicability. That de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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