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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 ..... etween the appellants would establish the involvement in the alleged offence - the penalties imposed on the appellants are set aside - appeal allowed - decided in favor of appellant. - C/75917-75918/15 - FO/A/75967-75969/2017 - Dated:- 31-5-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri B.N.Chattopadhyay, Consultant Shri Arijit Chakraborty, Advocate for the Appellant Shri S.K.Naskar, AC(AR) for the Revenue ORDER Per: Shri P. K. Choudhary Briefly stated the facts of the case are that on 10.02.2014, at 10.30 hrs., the Police officers of Arer Police Station, District Madhubani intercepted a Bus, coming from West side on S.H. 52, Benipatti, Madhubani Main Road. The said officers recovered a gold biscuit of foreign origin. It has been alleged that the said gold biscuit was found from the possession of the appellant No.1, Shri Suraj Ashok Shinde. The police officers recorded statement dated 10.02.2014 of the appellant No.1. As per order dated 14.02.2014 of the Ld.Chief Judicial Magistrate, Madhubani, the S.H.O. of Police handed over the goods to the office of the Customs (Prev.) Circle, Madhubani on 03.03.2014 and duly seized by the Customs Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014. The Customs Authorities prepared the seizure memo dated 03.03.2014, which is recorded as under:- This seizure has been effected as per the order dated 14.02.2014 of the Chief Judicial Magistrate, Madhubani in the case No.16/14 dated 10.02.2014 of the Police Station, Arer. 5. As per order dated 04.03.2014 of the Economic Offences Court, Muzaffarpur, the Superintendent of Customs (Prev.) Circle Darbhanga recorded the interrogatory statement of the appellant No.1. It is significant to note that the appellant No.1 was in Jail custody at that time. Appellant No.1, in his statement dated 04.03.2014 before the Customs Authority in Jail custody denied the statement given before the Police and stated that appellant No.2, Proprietor of M/s.Omkar Jewellers, Bakargunj, Patna is his distant relative and he had gone to Janakpur, Nepal, from the residence of his relative, the appellant No.2, on 09.02.2014. After performing Puja at the Ram Janaki Temple at Janakpur, Nepal on 10.02.2014 morning, he took the Bus for Darbhanga. It is further stated that during the course of checking, the Police had found a Bag lying on the left side of his seat and Police asked him as to who was the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.03.2014. The ld.Chief Judicial Magistrate by his order dated 14.02.2014 directed the Police to handover the goods to the Customs Authorities who are competent to seize the goods under the Customs Act, 1962. It is not clear from the records as to why the Police Authorities had taken more than two weeks to handover the goods to the Customs Authorities on 03.03.2014. No enquiry was conducted by the Customs Authorities on such delay. It may be pointed out after considering the facts of the case, the ld.Economic Offences Court, Madhubani permitted the Customs officers to record the statement of the appellant No.1 and accordingly on 04.03.2014 and 13.03.2014, the Customs officers recorded the interrogatory statement of the appellant No.1 in Khudi Ram Bose Central Jail, Mukti Branch, Muzaffarpur. After release on Bail on 14.03.2014, the Customs officials again recorded interrogatory statement of the appellant No.1 on 09.06.2014. It is noted that the two statements dated 04.03.2014 and 13.03.2014 were recorded in jail custody and in the statement dated 09.06.2014, the appellant No.1 categorically denied the statement given before the Police on 10.02.2014. Both the authorities below obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sea Customs Act, 1878 draw a distinction between a Seizure under the Act and Seizure under the provisions of other Laws. It has been held that seizure under the Act is one for which the authority to seize is conferred by the Act. The seizure from the owner of property under Section 180 was held to be not a seizure under the Sea Customs Act but by a police officer effecting the seizure under other provisions of law such as Code of Criminal Procedure. The Supreme Court construed the expression Seized in the context of usage in Section 178A to mean take possession of contrary to the wishes of the owner of the property . In the case of Ranjit Ram v. Collector of Customs [1983 (14) E.L.T. 2086], the Tribunal held that a seizure under the Customs Act cannot be effected by a person other than a Proper Officer as defined in the Act and once, therefore, the seizure has been effected by the Police as in that case, and not by the Proper officer. Section 123 becomes inapplicable since it was not a seizure under the Act in terms of the power specifically vested in the Proper officer. The same view has been expressed by the Tribunal in the case of K. Beeman v. Collector of Customs, Madras [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even been corroborated by Kasturchand Mohanchand Baid who in his statement disclosed on 8-8-2000 that 7 biscuits of gold was sold to Jitendra Pawar, appellant No. 1 and after adjusting the purchase of some bullions from Jitendra Pawar, appellant No. 1, the balance payment was received by him. This evidence has been wrongly ignored by the authorities below. The bill dated 5-11-98 issued by the firm Kasturchand Mohanchand Baid had been brushed aside on the ground that it was produced after six days of seizure. But this could not be legally done, when the firm which issued the bill had accepted its correctness. Similarly, the bill issued by Anoop Jewellers regarding sale of the gold to appellant No. 1 on 19-4-2000 had also been wrongly not accepted by the authorities below. No statement of any partner of Anoop Jewellers was recorded and as such the correctness of the bill issued by that firm to appellant No. 1 could not be questioned or doubted. 12. In the case of Nunna Satyan Arayana v. Commissioner of Customs, Hyderabad [2001 (133) E.L.T. 679 (Tri.-Chennai)], Tribunal held as under:- 6. On a careful consideration of the submissions made by both side, I notice that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other aspect of this matter is that both the authorities below observed that the relationship between both the appellants is established through the Mobile phone numbers. I find that both the appellants in their interrogatory statements before the Customs officers had disclosed that they know each other. But there is no material available on record that the relationship between the appellants would establish the involvement in the alleged offence. Further, there is no evidence of the conversation of the appellants over the Mobile phone for the purpose of alleged offence. Therefore, the Mobile phone numbers of the appellant No.2 was found in the Mobile Phone of the appellant No.1 could not draw an inference regarding the involvement of the appellants in the alleged offence. Taking into account the overall facts and circumstances of the case and the decisions cited by the ld.Counsels on behalf of the appellants, I find that there is no sufficient material available on record to implicate the appellants and therefore, the imposition of penalties on the appellants cannot be sustained. 15. In view of the above discussions, the penalties imposed on the appellants are set aside. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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