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TMI Blog2023 (5) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... the admissions of the appellants. The admissions have never been retracted by any of the appellants - The foreign currency found in the baggage of Shri Deepak Batra stands corroborated on documents as were recovered during said search. Resultantly, there are no infirmity when opportunity of cross-examining Shri Deepak Batra has been denied to the appellants. The goods in question were not seized from the customs area - HELD THAT:- The appellants could not produce any document about discharging their customs duty liability. Accordingly, its stands sufficiently proved that appellants have been procuring gold in sheer violation of the Customs Act and the gold so procured by them has passed the customs area in a concealed manner without payment of customs duty which is sufficient to hold that appellants were involved in smuggling of gold. On 05.07.2017, Shri Deepak Batra was intercepted at the international airport with concealed foreign currency in his baggage. The said currency was mentioned to be handed over to him by three of the appellants which stands proved from the document recovered from the premises of the appellants. Resultantly, irrespective, the currency/gold were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shared by three of the above named co-appellants and by Shri Deepak Batra. When he was taken to his residence along with the search warrant on 06.07.2017 itself except to the foreign currency as mentioned in the annexure to Panchanama dated 06.07.2017 drawn at the residence premises at A-60, 1st Floor, South Extension Part-1, New Delhi nothing else was recovered from his premises. However, Shri Deepak Batra could not produce any documentary evidence about licit possession of the said foreign currency. The statement of Ms. Shefali Batra was also recorded on 06.07.2017 itself. She admitted for visiting abroad with her husband Shri Deepak Batra, she also stated that she knew Shri Ram Dass Madan, however, as the maternal uncle of her husband. On the basis of the statement of Shri Deepak Batra and the follow up search of his residence that searches were made on the residences of three of the appellants on 06.07.2017 which resulted in recovery of some incriminating documents. 195 grams foreign origin gold, and Rs.27.5 Lakhs (INR) were also recovered from the residence of Shri Abheek Madan. 1.3 Pursuant thereto, statements of three of the appellants were recorded on 07.07.2017 under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 27.5 Lakhs and gold 195 grams recovered from the residence of later. Observing all the appellants to be the habitual offenders for exporting foreign currency and illegally importing gold with an intent to evade the payment customs duty that the penalty was also proposed on all of them under Section 112(a), 112(b) and 114AA of the Customs Act, 1962. The said proposal has been confirmed by the original adjudicating authority vide Order-in- Original No. 322/2018 dated 31.08.2018. The appeal thereof has been rejected vide Order-in-Appeal No. 4363-4365/2021-22 dated 07.04.2022. Being aggrieved the appellants are before this Tribunal. 2. I have heard Shri Aakash Deep, learned Counsel for the appellants and Shri Mahesh Bhardwaj, Authorized Representative for the department. 3. It is submitted by the appellants that they have falsely been involved merely based on the statement given by Shri Deepak Batra and Shri Amar Punjabi. Despite the repeated requests, no opportunity to cross examine both of them was ever given to the appellants. The order under challenge is alleged to be illegal on this score itself. Reliance has been placed upon the decision of Hon ble Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cealed in the baggage with the sole intent to evade the customs duty and for earning the better profits by selling the smuggled gold at the market prices. It is further mentioned that there has been the recovery of foreign currency from the residence of Ms. Janki Dass Madan as well. The recovery corroborates the admissions made by the appellants in their statements. The request for crossexamination of Shri Deepak Batra whose deposition was fully admitted by the appellants was rightly been denied by the adjudicating authority below. Impressing upon no infirmity in the order under challenge, appeals are prayed to be dismissed. 5. Having heard the rival contentions, perusing the entire records and including all the relied upon documents to the show cause notice, I observe and hold as follows: The present case is based upon the statements recorded during investigation of the persons intercepted by DRI i.e. Shri Deepak Batra and Ms. Shefali Batra, his driver Amar Punjabi and the statements of the appellants. The basis of the adjudication have also been the Panchanamas about effecting recoveries from the baggage of Shri Deepak Batra and Ms. Shefali Batra and from the residences of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence there are no cash memos or bills for those dealings. However, he had some bills and cash memos for purchase for food supplements. Hence, no document could at all be provided by Shri Deepak Batra about carrying foreign currency, except for the expenses incurred on flight, hotel tickets and visa charges. Based on the said statement that the statement of three of the appellants were recorded. 7. I observe that Shri Ram Dass Madam stated to have the business of fire crackers, however, because of various restriction it was not doing well hence he thought of venturing into trading of foreign currency and gold of foreign origin after he met Shri Deepak Batra through is son Abheek Madan. Three of them got assossiated and started getting gold from Bangkok and Singapore through Shri Deepak Batra and thereafter they used to sell the same in Kucha Mahajani, Delhi. He specifically stated that he along with his brother Shri Janki Dass Madan and his son Shri Abheek Madan were arranging the foreign currency from one Shri Shafeeq and Wasim residents of Matia Mahal, Chandni Chowk, New Delhi. The said currency used to be handed over to Shri Deepak Batra through his driver Shri Amar Singh al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re from the residential premises of the appellants, it is apparent that three of them reside at the same address however at the different floors thereof. The foreign currency as well as gold of 999.99 and 996.5 purity was recovered from the floor of Shri Janki Dass Madan along with certain diaries/files. The documents therein in the form of kacha parchis are admitted in corroboration to be the coded record for the illegal transaction being done by the partnership firm of the appellants. 10. The appellants have challenged the impugned Order-in- Appeal on two counts: 1. Opportunity to cross-examine Shri Deepak Batra and Shri Amar Punjabi was not given to the appellants. 2. The goods in question were not seized from the customs area. 11. With respect to the first ground of objection, as already discussed above, though case was made out based upon the statement of Shri Deepak Batra who was intercepted at International Airport while travelling to Bangkok. He had deposed the connivance of three of the appellants for illegally exporting/importing the foreign currency and gold. Pursuant to his statement, searches were conducted at the appellants premises and their statements w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms duty liability. Accordingly, its stands sufficiently proved that appellants have been procuring gold in sheer violation of the Customs Act and the gold so procured by them has passed the customs area in a concealed manner without payment of customs duty which is sufficient to hold that appellants were involved in smuggling of gold. On 05.07.2017, Shri Deepak Batra was intercepted at the international airport with concealed foreign currency in his baggage. The said currency was mentioned to be handed over to him by three of the appellants which stands proved from the document recovered from the premises of the appellants. Resultantly, irrespective, the currency/gold were not recovered from the customs area, the trading thereof is definitely in violation of the Customs Act and the goods are definitely the smuggled goods. 12. In view of entire above discussion, I hold that there is no infirmity in the order under challenge while ordering absolute confiscation of foreign currency recovered from Shri Deepak Batra, Indian and foreign currency as recovered from the premises of Shri Janki Dass Madan and the confiscation of the gold recovered from the appellants along with the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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