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TMI Blog2024 (5) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... chased by cash. This aspect of the matter was never established by the respondent and the co notices. Therefore, the learned tribunal erroneously shifted the burden on the department stating that the same has not been denied. The question of denial will come only if the onus is discharged by the respondent and the co-noticees as required u/s 123 of the Act. Thus, without any document placed by the respondent and the co-noticees, the tribunal could not have come to the conclusion that the department did not establish the same by cogent evidence. This finding is absolutely perverse and contrary to the scheme of Section 123 of the Act. The respondent and the other co-noticees would contend that the purity of the gold not been 99.9%, it is established that it is not smuggled gold. Such conclusion cannot be arrived at in the absence of any proof to show that the gold was from and out of the gold jewellery which was purchased for cash. That apart, merely because the statement is said to have been retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, the revenue has rightly placed reliance on the decision of the Hon ble Supreme Court in Vinod Solanki Vers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal) in Customs Appeals dated 13.03.2023 by which the appeal filed by the respondent along with other connected appeals were allowed holding that the stand taken by the respondent and others that the gold in question was made out of an old jewellery purchased in cash which fact has not been denied by the revenue by cogent reasons and therefore the gold is not liable for confiscation. Further the learned tribunal held that the revenue has failed to establish the fact that the cash recovered from the respondent and others are sale proceeds of the smuggled gold and therefore the cash seized cannot be confiscated and no penalties are imposable. 2. The revenue has raised the following substantial questions of law for consideration:- (a) Whether the Learned Tribunal erred in law in not holding that the statements of the Respondent/Noticee No. 1 i.e. Rajendra Kumar Damani was voluntary, while giving credence to the Noticee's submission that they were retracted. The statements made by Respondent/Noticee No. 1 on 07.08.2018, 08.08.2018, and 25.07.2019 were all in his own handwriting and in his vernacular, which indicates that the statements were all voluntary ? (b) Whether the Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yellow metallic coins believed to be gold of foreign origin and a pouch of white colour metallic granules believed to be silver of foreign origin were found. A search list cum inventory was prepared by the DRI of the recovered Indian currency as well as the yellow metallic coins believed to be gold of foreign origin and white metallic granules believed to be silver of foreign origin and the search list was signed by the respondent herein. When the respondent was questioned, he stated to have admitted that the entire cash is the sale proceeds of smuggled gold and silver. The DRI officers called upon the respondent to produce documents but they could not produce any document to show that the ceased articles were not of foreign origin. 5. In the simultaneous search conducted in the second premises, eleven number of yellow colour metallic bars believed to be gold of foreign origin concealed inside old and used newspapers and several bundles of huge amount of cash of Indian currency secreted in metallic vault fitted on the wall was found. The respondent is stated to have admitted that he is the owner of the shop and the other two persons were his employees and that the eleven yellow co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/instructions/rules, it can be seen that well defined and exhaustive conditions and restrictions are imposed on the import of various forms of gold by eligible passengers/nominated banks etc. These conditions are restrictions imposed on the import of gold. It was stated that in the case on hand that none of the condition was satisfied rendering it a clear case of smuggling. Section 123 of the Act was referred to and it was stated that the burden of proving that the gold is not smuggled gold shall be on the person, who claims to be the owner of the goods so seized or from whom whose possession the goods are seized. In paragraph 27.1 of the show cause notice the role of the respondent has been set out. 9. The adjudicating authority namely The Additional Commissioner of Customs (Preventive) afforded an opportunity of personal hearing to all the noticees on 11.11.2019 including the respondent who has represented by the learned advocate in the hearing fixed on 24.01.2020. The reply given by the respondent was considered and by order dated 16.09.2020, the gold and silver were ordered to be absolutely confiscated as well as the order for absolute confiscation of the Indian currency which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs Versus Pratap Rao Sait and Others 1972 CrLJ 1135). Thus when Section 123(1) of the Act casts on the person concerned, the burden of proving that the goods are not smuggled goods, it is up to him to show whether that goods are not of foreign origin and hence not smuggled or that the goods are of foreign origin, but not smuggled goods, having been lawfully acquired. 13. Reasonable belief that goods are smuggled goods is to be judged from the Customs Officers experience and that sufficiency of material leading to formation of belief is not generally open to judicial review. However, the opinion of the customs officers cannot be wholly objective and the courts can examine the correctness and the circumstances leading to such belief. Therefore, it would be sufficient if the circumstances on the material before the officer, prima facie gives sufficient grounds to entertain the belief, one such factor being prior information. 14. Having noted the above legal position, we are required to examine as to what was the stand taken by the respondent and the two others co-noticees. As could be seen from the averments set out in the show cause notice, and the adjudication order, a sligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... among which, Mr. Anil Agarwal of Banda, M.P, Mr. Abishek Agarwal @ Pawan (mobile number of 7080367020) and Gurudas Babu (Land phone0332258-1730) of Sonapatti were his primary customers. Sometime, one Deepak of Mirzapur (mobile number 9044381101) used to come to take delivery of the gold. He also stated that he used to make all the transaction in cash and all those transaction did not have any legal documents. VI. He has an account in H.D.F.C Bank and Axis Bank of Bourbourn Road Branch. The total balance, at that time, in both the accounts, amounts to Rs. 6 lac approximately. He also stated that he did not have any other bank account either in his name or in the name of his company i.e. Rajendra Kumar Mahaswari. VII. On 06/08/2018, he reached his Office at 72 Manohar Das Street, Kolkata 700007, at around 11 AM in the morning. As usual, his three Parties namely, Maa Ambay Jewlers, Sankar and Aloke came and gave delivery of 4kgs, 2 kgs and 2 kgs of gold bars of 1 kgs, of foreign origin without any markings to him. With that he reached his shop/godown at 17 Pageyapatty, Kolkata - 700007. He already had 2.50 Kgs Gold in the Office. In the morning only Shri. Anil Agarwal of Banda had tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lry shop which is situated near Dhramkata at Sonapatti. He visited twice or thrice to his shop, but he did not have the exact details of his shop. He did not know anything about their residential address. 15. The authority while issuing the show cause notice dated 28.07.2019 after considering the statement given by the respondent herein and other matters connected therewith, explained the role of the respondent in paragraphs 27.1 of the show cause notice which is as follows:- 27.1 Shri Rajendra Kumar Damani alias Raju Damani: From the statement dated 06.08.2018 and 07.08.2018 of Shri Rajendra Kumar Damani alias Raju Damani, recorded under Section 108 of the Customs Act, 1962, it could be seen that Shri Rajendra Kumar Damani used to do trading of the smuggled gold and silver of foreign origin by way of procuring them from different person at Sona patti, Kolkata. The very fact that he never did the trading of Gold and silver under cover of legal documents establishes that the Gold and silver which he used to trade are procured illegally. Shri Rajendra Kumar Damani, in his Statements, given under Sec. 108 of Customs Act, 1962, has categorically admitted that the 11 pieces of gold bars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ashok Kumar Jalan and Amit Jalan. However, Shri Raju Damani knowingly suppressed the true fact with an intention to shield his principal supplier and tried to jeopardize the investigation. On the other hand he tried to rope in some small traders which proves his criminal intention. From the foregoing, it appears that Shri Rajendra Kumar Damani, knowingly indulged himself in smuggling of gold for monetary benefit. Further, Shri Damani appears to have suppressed the name of actual supplier of the smuggled gold by naming some of the name of small businessman of Sonapatti, Kolkata with a mala-fide intention to hide the actual supplier of the smuggled gold from the clutch of law of the land. Thus it appears that Shri Rajendra Kumar Damani had been knowingly involved in the Illegal activity of smuggling gold and he in connivance with Shri Bhola Ray @ Bholi Ray and Shri Sanatan Behera alias Hari smuggled 11 pcs of gold weighing 10500.800 gms valued at Rs. 3,15,02,400/-, 9 pcs of gold coin, valued at Rs. 2,07,000/- and 509.100 grams of silver granules, valued at Rs. 19,448/-, in the instant case of seizure, along with seized Indian Currency Note of Rs. 1,74,76,500/-. It therefore appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants before the tribunal could not produce any document in support of importing/ possessing/ carrying/ otherwise dealing with gold so recovered and seized from them and therefore held that they failed to discharge the burden of proof as required under Section 123 of the Act. Further the adjudicating authority held that no documents could be produced by the respondent and the two other co-noticees in support of legally possessing the silver granules. With regard to the Indian currency notes which was seized the adjudicating authority holds that the respondent failed to produce any documents evidencing the source of the said cash and has referred to the admission in the statement recorded under Section 108 of the Act that they are the sale proceeds of the smuggled goods. In the background of these facts, the order of absolute confiscation and imposition of penalty was passed. 19. Before the appellate authority, the grounds raised by the respondent and other co-noticees before the adjudicating authority were reiterated in a more elaborate fashion and the decisions of the courts were referred to. The appellate authority considered the stand taken by the respondent and the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Versus Union of India and Others 1997 89 ELT 646 (SC). The learned tribunal in paragraphs 17 records that during the course of investigation, it was found that there was no mark on the gold seized and the purity of the gold was found to be 99.5% and not 99.9% and during the course of investigation, the respondent has made a statement stating that the source of procurement of the said gold is made from old jewellery purchased in exchange of cash during the long period of time and due to the stock of gold was melted through the said old jewellery and converted into gold bars. The tribunal holds that this fact has not been verified by the revenue. After recording such a finding, the tribunal has referred to certain decisions and holds that he noticees have explained the source of procurement of gold which is not denied by the revenue and further having no mark on the gold and purity of the gold is not in conformity of the foreign gold, the benefit of doubt goes in favour of the noticees. 23. Further the tribunal holds that the statements recorded during the investigation was retracted by the respondent and other two co-noticees and they are not admissible in absence of corroborative e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold was from and out of the gold jewellery which was purchased for cash. That apart, merely because the statement is said to have been retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, the revenue has rightly placed reliance on the decision of the Hon ble Supreme Court in Vinod Solanki Versus Union of India and Others (2009) 233 ELT 157 (SC). If the learned tribunal was of the view that the statement recorded under Section 108 of the Act was not admissible on account of the retraction, that by itself cannot render the statement as involuntary. It is the duty casts upon the court to examine the correctness of the validity of the retraction, the point of time at which the retraction was made whether the retraction was consistent and whether it was merely a ruse. These aspects have not been examined by the learned tribunal resulting in perversity. The mobile phones which were recovered and the call details record which were obtained have all been elaborately discussed by the adjudicating authority. This aspect has not been dealt with by the learned tribunal. The seizure cannot be denied by the respondent since the seizure list was drawn in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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