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TMI Blog2024 (5) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Customs Act, 1962 and imposition of penalty of Rs.50,000/- on him under Section 112 of the Act. (ii) Customs Appeal No. 75965 of 2016 filed by Shri Krishna Pramanik (hereinafter referred to as 'appellant no. 2') against the imposition of penalty of Rs.10,00,000/- on him under Section 112 of the Customs Act, 1962. (iii) Customs Appeal No. 75997 of 2016 filed by Shri Jatneswar Sarkar (hereinafter referred to as 'appellant no. 3') against the imposition of penalty of Rs.10,00,000/- on him under Section 112 of the Customs Act, 1962. (iv) Customs Appeal No. 75998 of 2016 filed by Shri Sujoy Saha (hereinafter referred to as 'appellant no. 4') against the imposition of penalty of Rs.10,00,000/- under Section 112 of the Customs Act, 1962. 2. Brief facts of the case are that on 26.07.2014, at 07:30 hrs., Officers of the Directorate of Revenue Intelligence (DRI), Siliguri Regional Unit, visited the residence of the appellant no. 1 at Narayanpur, Near Vishwabharati Club, P.O. & P.S. - Balurghat, District - Dakshin Dinajpur, West Bengal in connection with the recovery of gold from two persons intercepted by the DRI, Kolkata at Burrabazar, Kolkata. The persons apprehended at Bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 1; a penalty of Rs.50,00,000/- was imposed on the appellant no. 1 under Section 112 of the Customs Act, 1962. Penalty of Rs.10,00,000/- each was imposed on each of the appellant nos. 2, 3 and 4 under Section 112 of the Act. 6. Aggrieved against the confiscation of the Indian currency and imposition of penalties, the appellants have filed the present appeals. 7. The appellant no. 1 submits that: - (a) He has nothing to do with the seizure of the gold weighing 2.625 kgs. at Burrabazar on 26.07.2014. The Indian currency of Rs.46,00,000/- was their family property and kept for distribution among the legal heirs. This was affirmed by his brother Shri Bikash Kumar Agarwala also in his Statement dated 17.08.2014. (b) He has produced all the documents before the investigation authorities in support of his claim to return the Indian currency seized from his residence. (c) In his Statement dated 14.01.2015, Shri Narayan Agarwal,Chartered Accountant of the appellant no. 1, also stated that the currency was kept for distribution among the family members. (d) The investigating officers presumed that the Indian currency was the sale proceeds of the smuggled gold. However, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the investigating authorities have arbitrarily concluded that the appellant no. 2 viz. Shri Krishna Pramanik is the person who handed over the gold, without any verification. The appellant no. 2 submits that he has been falsely implicated and penalized in the instant case. As there is no evidence available on record to implicate him in the seizure of the said gold, he submits that the penalty imposed against him under Section 112 of the Act is not sustainable. 9. Shri Jatneswar Sarkar, appellant no. 3, has contended that he was carrying the gold from Balurghat to Kolkata which is within the territory of India; there is no evidence available on record to conclude that the said gold was contraband, smuggled without payment of Customs duties; the seized gold has no connection with him as he has not played any role in the illegal importation of the seized gold; the ld. adjudicating authority in the impugned order has arbitrarily concluded that he has associated with the illegal importation of the seized gold; he reached Kolkata by train viz. Radhikapur Express from Kaliaganj Station and hence, there is no evidence to indicate that he was involved in the alleged illegal importat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no. 1 was implicated as the owner of the gold by Shri Jatneswar Sarkar and Shri Sujoy Saha (appellants 3 and 4 herein) from whose possession DRI, Kolkata has seized the gold weighting 2.625 kgs. The Indian currency of Rs.46,00,000/- has been seized on the ground that this was the sale proceeds of the smuggled gold. We observe that the investigation has not brought in any evidence on record to show that the appellant no. 1 was involved in the smuggling of the gold and that the Indian currency was the sale proceeds of the gold smuggled in by the appellant no. 1.On the contrary, the appellant no. 1 has submitted that they have received an Order from the Department vide Order dated 08.10.2007 releasing 18 pieces of gold by the Superintendent of Customs, Balurghat and the Indian currency seized was the sale proceeds of this gold, which was kept for distribution among his family members after the demise of his mother. We find that the investigation has failed to bring in any evidence to counter this claim made by the appellant no. 1. Thus, we observe that there is no evidence available on the record to show that the Indian currency seized was the sale proceeds of the gold smuggled by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished the following ingredients must be satisfied: (i) there must be a sale. . (ii) the sale must be of smuggled goods. (iii) the sale must be by a person having knowledge or reason to believe that the goods were of smuggled origin. (iv) the seller and purchaser and the quantity of gold must be established by the Customs authorities. 6. In this case, however, none of the requisites of Section 121 have been fulfilled - no sale has been established, identity of the buyer and seller has not been established. As a consequence, the currency cannot be considered to represent the sale proceeds of the contraband goods and, therefore, no violation of Section 121 has been made out. Since the charge under Section 121 of the Customs Act has not been proved against the appellant the currency notes cannot be retained by the Department and have to be returned to the appellant. Imposition of penalty is also not legal and proper in the absence of proof of violation of any provisions of the Customs Act." 13.2. The same view has been held in the case of Sudesh Kumar Mittoo v. Collector of Cus. & C.Ex., Jaipur [2001 (136) E.L.T. 100 (Tri. - Del.)] wherein it was held as under: - "8. ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the licit import of the gold. Thus, there is 'reason to believe' that the gold was smuggled in nature and the involvement of the appellants no. 3 and 4 in the transportation of the smuggled gold without any valid document is established. 15.1. In their submissions, the appellants contended that the penalty imposed on them is very high and is not commensurate with the offence, if any, committed by them. In this regard, they cited the decision in the case of Gopal Saha v. Union of India [2016 (336) E.L.T. 230 (Cal.)] wherein it has been observed that only prohibited goods are to be taken into account for the purpose of imposition of penalty. 15.2. We observe that the goods in question are not 'prohibited goods' warranting severe penalty. The goods are 'restricted items' for which a lesser penalty would meet the ends of justice. We find that the appellants have heavily relied on the decision of the Hon'ble High Court in the case of Gopal Saha (supra). However, from the facts of the said case, it is not coming out as to whether in the said case the gold in question had been absolutely confiscated or not and whether the appellants had satisfied the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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