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TMI Blog2017 (6) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority. Thereafter the Superintendent of Customs on 04.03.2014 and 13.03.2014, recorded the statement of the appellant No.1, wherein he denied the statement given before the Police. During the course of investigation, the Customs officers recorded the statement of Appellant No.2 on 24.06.2014. Both the appellants denied the ownership of the gold. A Show Cause Notice dated 25.08.2014 was issued proposing the confiscation of the said gold biscuit and to impose penalties on the appellants. The Adjudicating Authority confiscated the seized gold biscuit weighing 1(one) kg. of foreign origin absolutely and also imposed penalty of Rs. 15,00,000/- each on the appellant No.1 and appellant No.2 under section 112(i) of the Customs Act, 1962. By the impugned order, the Commissioner(Appeals) rejected the appeals filed by the appellants. 2. Heard both sides and perused the appeal records. 3. Both the appellants filed the appeals against the imposition of penalties. It is submitted that both the appellants have no concern with the confiscated gold. On perusal of the records, I find that on 04.03.2014, the Police officers recovered the seized gold from the Bus. A statement dated 10.02.2014 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bag. He told them that he did not know, and the Police opened the Bag and found the aforesaid Gold Biscuit in the said Bag. The Police seized the gold and a case was booked in his name and he was sent to Jail. 6. The Inspector of Customs(Prev.), Madhubani again filed an application dated 12.03.2014 before the ld.Court of Economic Offences, Muzaffarpur for interrogation of the appellant. Accordingly, on 13.03.2014, the interrogatory statement of appellant No.1 was recorded in Khudi Ram Bose Central Jail of Mukti Branch, Muzaffarpur. The appellant No.1 reiterated his earlier statement dated 04.03.2014. But, he added that he talked with his relative, the appellant No.2 over his mobile phone while he was en route to Nepal. The Police officers seized his mobile phone and Rs. 2,700/- found from his pocket. Thereafter, the appellant No.1 was released on Bail on 14.03.2014 by the ld.Court. 7. After being released on bail, the appellant No.1 was again summoned by the Superintendent of Customs (Prev.), Darbhanga. On 09.06.2014, the interrogatory statement of the appellant No.1 was recorded by the Superintendent of Customs (Prev.) Circle, Darbhanga. The appellant No.1 merely reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements are after thought and proceeded on the basis of the statement dated 10.02.2014 given before the Police authorities. I find that the Police officers recorded the statement of the appellant No.1 on 10.02.2014. It appears from the statement of the appellant No.2, that on the very next day i.e. on 11.02.2014, the Jewellery shop of the appellant No.2 was sealed but no statement of appellant No.2 was recorded by the Police officers. On the other hand, the Customs officers recorded the statements of both the appellants on various occasions, and in all these statements, they have denied the statements made by the appellant No.1 before the Police officers. I find that the Customs officers had not found any material to implicate the appellants except the statement dated 10.02.2014 of the appellant No.1 made before the Police officers. In my considered view, the statements recorded by the Customs officers of the appellant No.1 as per the order of the ld.Economic Offences Court in Jail custody cannot be discarded in a casual manner, without any investigation. In the present case, the Customs officers had not enquired regarding the delay in handing over of the case by the Police despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of R. Ramesh v. Collector of Customs [1987 (27) E.L.T. 675]. Therefore, in the instant case, the onus is upon the department to establish the involvement of the appellant in the offence. Having held so, let us examine whether the department has discharged the burden cast upon it." 11. In the case of Jitendra Pawar v. Commissioner of Customs, Raipur [2003 (156) E.L.T. 622 (Tri.-Del.)], it has been held as under:- "4. That being so, the initial burden was on the Department to prove that the gold seized from the possession of appellant No. 1 was smuggled one and mere foreign marking which was only on the gold biscuits and not on the other gold items detailed above, was not sufficient to raise an inferences that it was smuggled into India. In this context reference may be made to State of Maharashtra v. Prithviraj Pokhraj Jain (supra) as well as to Rajesh Kumar v. Commissioner of Customs - 2001 (134) E.L.T. 148. It remains undisputed that at that time gold could be freely imported and was available in the market for sale and purchase. There is no tangible evidence on the record to prove that the seized gold was smuggled into India by the appellant No. 1 from whose possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f retraction made by the appellants while still in judicial custody. The appellants had made the retraction at the earliest point of time, therefore, it cannot be said to be an after thought or a concocted story as held by the Commissioner (Appeals)...." 13. In the present case, it has already been observed that the Police officers implicated the appellants on the basis of the accused's own statement. The case was handed over to the Customs Authorities after about one month. There is no explanation given by the Police and/or enquired by the Customs Authorities for such delay. It may be mentioned that the Police officers had not taken any statement of the other passengers of the Bus, at the time of recovery of the gold. It is already pointed out that the shop of the appellant No.2 was sealed and no statement of appellant No.2 was recorded by the Police. It is not clear from the record as to whether any search was conducted in the shop of the appellant No.2. The investigating officers had not examined all these factors and merely proceeded on the basis of statement dated 10.02.2014 before the Police officer and totally ignored the retraction of the statement in Jail custody reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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