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TMI Blog2022 (5) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 kgs. valued at Rs.91,95,725/-, had given an option to redeem the same under Section 125 of the Customs Act, 1962 on payment of fine of Rs.9,20,000/- along with payment of applicable duty on the above gold, apart from imposing penalty under Section 112 ibid. of Rs.10,00,000/- on Shri M.S. Alaudeen, Rs.2,00,000/- on Shri S. Nagoor Gani and Rs.1,00,000/- on Shri G. Umapathy. The First Appellate Authority modified the above by reducing the redemption fine to Rs.4,60,000/- and penalty under Section 112 ibid. to Rs.2,00,000/-, Rs.20,000/- and Rs.10,000/- respectively. 2. Brief facts leading to the filing of these appeals, as gathered from the arguments of the representatives of both sides, inter alia, are that:- (i) A specific intelligence was gathered that foreign origin gold were being smuggled into India by way of concealment, cleared through Anna International Airport and brought to the premises of Shri M.S. Alaudeen, one of the assessees-appellants herein. (ii) The officers of CZU-DRI identified the premises of the assessee-appellant, entered on 12.12.2018 with a search warrant. (iii) The assessee after going through the search warrant had affixed its signature with date f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lathe business of smelting and melting gold used melting furnace. (ii) Since a lot of referred customers wanted the services of this assessee-appellant only, he used to be in charge of all the business activities. (iii) A search was conducted on 12.12.2018 which resulted in seizure of seven ring shaped gold, three square shaped strip of gold and one half cut piece of 100 grams of gold bar (foreign marked) to an extent weighed 2.810 kgs. (iv) On the very same day, the said assessee was taken by the officers to their office, severely beaten, threatened and dictated to give statement. (v) He chose to retract, vide his communication dated 13.12.2018 i.e., the very next day, his statement made on 12.12.2018. (vi) A writ petition in W.P. No. 8527 of 2019 was filed for a direction seeking to return the seized gold. The Hon'ble High Court vide Order dated 24.06.2019, while disposing of the above writ petition, however, inter alia directed the appellant to make an application for provisional release. (vii) Another Writ Petition in W.P. No. 22333 of 2019 was filed against the issue of Show Cause Notice, but however, the Hon'ble High Court vide its Order dated 30.07.2019 disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cut piece of gold having foreign marking and hence, the same was required to be absolutely confiscated since the appellant has not discharged burden under Section 123 ibid. He further relied on decisions of various courts in support. 5. I have considered the rival contentions, have gone through the documents placed on record as well as the orders of lower authorities and have also gone through the judgements / orders relied upon by both the parties during the course of arguments, by which it is clear that judgements are available which are supporting the counter-stand of both the parties. This makes it clear that the applicability of the judgements would depend on the facts of each case and hence, it is essential that proper facts be brought on record in the first place, to apply the judgements. 6. I find force in the contentions of the Learned Advocate for the assessees-appellants that a general retraction saying that the statement was not voluntary is sufficient. In the said retraction letter dated 13.12.2018, one of the appellants, Shri M.S. Alaudeen, has inter alia mentioned as under: "I submit that your officers today searched my Workshop situated in the above addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addresses of its customers. The same would also apply to the half cut piece of gold bar with the marking "Cambi, Suisse 100 gm Gold 999.9", since the initial burden, within the meaning of Section 123 ibid., is always on the person from whose possession the gold, including the one with foreign marking, is seized, to prove that none of the seized gold was smuggled. 8.4 The retraction statement does not deny the seizure of gold through the Mahazar and in the said retraction, he has clearly admitted, voluntarily, that the gold in question belonged to his customers. It is well-settled that when a retraction is made, then both the original statement as well as the retraction statement have to be looked into very carefully and hence, once a retraction is made, the burden is more on the appellant to place on record the identity of his customers since he had only admitted that the gold seized belonged to them. 8.5 When gold weighing 2.810 kgs. was seized under the Mahazar, which is not disputed, mere whooping denial without justifying as to how his earlier statement or a part of it was false, would not serve any purpose since he has to discharge the initial burden under Section 123 ibid. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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