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TMI Blog2020 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no claimant of the gold, the confiscation of gold handed over by the BSF Personnel to the Customs Authority is justified. Regarding seizure and confiscation of Mobile Phone and Indian currency, since the illegal importation of gold by the appellant has not been proved, the confiscation of the said old and used Mobile Phone valued at ₹ 200/- and Indian currency of ₹ 6,000/- cannot be made. Adjudicating Authority proceeded on the basis of probability that the Indian currency may be the advance received for smuggling of gold. The learned Commissioner did not give any finding on this point but upheld the confiscation - Appeal allowed - decided in favor of appellant. - Customs Appeal No.78413 of 2018 - FINAL ORDER NO. 75395/2020 - Dated:- 2-9-2020 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Shri N.K.Choudhary, Advocate for the Appellant (s) Shri S.Guha, Authorized Representative for the Respondent (s) ORDER The appeal of the appellant is directed against the Order-in-Appeal No.KOI/CUS/(CCP)/AA/1462/2018 dated 02-08-2018 passed by the Commissioner of Customs (Appeals), Kolkata. By the said Order, learned Commissioner (Appeals) upheld the Order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. valued at ₹ 13,27,470/-, one Mobile Phone and Indian Currency of ₹ 6,000/- have been recovered and seized from the appellant. On receiving the seized gold and the appellant, the Customs Officials seized the gold again on 04/04/2016 and prepared inventory of the goods seized. 4. The Customs Officials started investigation. The statement of the appellant was recorded under Section 108 of the Customs Act, 1962 on 04-04-2016 when he stated that he came to learn about the contents of the BSF Seizure Memo on the basis of which Customs Officials were asking questions. The appellant totally denied the contents of the BSF Seizure Memo and made it clear that the BSF Officials have wrongly implicated the appellant in the gold smuggling case. His residential premises was searched on 05-04-2016 but nothing was found. The appellant s statement was recorded on 05-04- 2016 before the Customs Officials wherein he clearly stated the fact that how the BSF Personnel took him into their custody and made a false case against him. He also stated that he is not the owner of the gold and he is not in any way involved with such illegal act. Thereafter, a Show Cause Notice was issued to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going to the transporter for making payment of ₹ 6,000/-. The Indian Currency has been confiscated on the finding that the Indian currency note most probably was the advance sum he received for smuggling of gold ...... He also imposed penalty on the appellant for ₹ 1,25,000/- under Section 112(b) of the Customs Act, 1962. The appellant filed an appeal before the Commissioner (Appeals) challenging the legality and maintainability of the order of the Adjudicating Authority since there is no rebuttal evidence of the statements given before the Customs Authorities by the appellant. No opportunity to cross-examine the witnesses named in the BSF Seizure Memo was allowed to disprove the seizure of gold from the appellant s possession and the story narrated by the BSF Personnel in the Seizure Memo. He also contended that the penalty under Section 112(b) of the Customs Act, 1962 cannot be imposed since there is no evidence to show his involvement in respect of any goods, which is confiscable under Section 111 of the Customs Act, 1962. The learned Commissioner (Appeals), decided the case against the appellant upholding the Order of the Adjudicating Authority proceeding in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evening is the second time seizure. The question of proving burden under Section 123 of the Customs Act, 1962 in such circumstances does not arise since the seizure by Customs was from Police/BSF Authorities. Moreover, the appellant was not required to discharge the burden since the gold was not recovered from him. He was not the owner of the gold, nor the claimant of the gold nor in any way dealt with the gold. He had expressed no objection to the Customs Authorities for pre-adjudication disposal of gold since the appellant was in no way concerned with the gold. The statement given before the Customs Authorities by the appellant repeatedly were admissible and substantive pieces of evidence where he had stated the entire thing denying recovery of the gold from him. There is no rebuttal evidence to contradict his statement before the Customs Authorities. This is not a case of illegal importation of gold but a case of harassment of the appellant at the instance of BSF Personnel. The Customs Authorities also did not make any effort to investigate and/or to record statement of seizing BSF Personnel or witnesses named in the Seizure Memo of BSF. Since the involvement of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are appearing in the BSF Seizure Memo. He came to learn in the BSF Camp that the actual carrier of the gold fled away after throwing away a packet, which was recovered by the BSF Personnel and on the way the appellant was caught and has been implicated. He also stated that he is not the owner of the gold. He cannot write. He only can make his signature. He was forcefully taken to the BSF Camp and has been booked in a smuggling case. There is no rebuttal evidence of his statement given before the Customs Authorities. The statement under Section 108 of the Customs Act, 1962 undisputedly is a substantive piece of evidence, which goes in favour of the appellant. This is further corroborated by the communication from the appellant to the Additional Commissioner that he had no objection in the pre-trail disposal of the gold since he was not the owner of the gold nor the claimant of the gold and the Customs Authorities can dispose the gold in any manner they deemed fit and proper. The learned Commissioner (Appeals) also chose not to deal with the decisions submitted by the appellant in respect of admissibility of statement under Section 108 of the Customs Act, 1962 being a substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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