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TMI Blog2024 (12) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession which indicate licit procurement of the said gold. However, the Appellants have categorically admitted that they were not in possession of any such documents. Therefore, the Appellant Nos. 1 to 3 have not discharged their onus of proving the ownership of the gold in question in terms of Section 123 of the Customs Act. Thus, the adjudicating authority has rightly confiscated the gold under Section 111(b), 111(d) and 111(f) of the Customs Act, 1962. The gold is not a prohibited item. However, its ownership needs to be established by the claimants for seeking release of the gold. In this case, the persons from whom the gold was seized are not having any documents in their possession to claim ownership of the gold and accordingly, the gold cannot be released to them - Regarding the prayer of the appellant for release of the gold on payment of redemption fine, it is observed that the ownership of the gold has not been established. Thus, the gold cannot be released to the appellants. Levy of penalties - HELD THAT:- As the gold in question has been absolutely confiscated, the penalties imposed on these Appellants is high as compared to the value of gold involved and the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of the possession, acquisition or transportation of the said gold thereof. Thus, the Officers seized the gold under the reasonable belief that the same was smuggled into India. 2.1. In the course of personal search and examination, it was revealed that: i. Shri Ashish Kumar Dutta viz. Appellant No. 1 was carrying two (02) pieces of gold bars bearing foreign markings/inscriptions weighing 1000 grams each and having a purity of 99.90%. ii. Shri Goutam Saha viz. Appellant No. 2 was carrying eighteen (18) pieces of gold biscuits weighing 116.64 grams each, having a purity of 99.90%. iii. Shri Ranjit Das viz. Appellant No. 3 was carrying sixteen (16) pieces of gold biscuits weighing 116.64 grams each, having a purity of 99.90%. 2.2. Statements were recorded from each of these persons under Section 108 of the Customs Act, 1961 wherein the said three apprehended persons stated that they had acted upon the instructions given by Shri Partha Ranjan Saha (Appellant No. 4 herein), based on which proceedings were also initiated against him. The DRI Officers searched the residential premises of Shri Partha Ranjan Saha on 09.04.2014, but he was not available in the said premises on the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so facto conclusively suggest that the said goods were smuggled into India and warrants applicability under Section 112 for imposition of penalty against the appellants. In the present case, the provisions of Section 111 cannot be invoked for confiscating the said goods, as it is a case of town seizure. (iv) The penalty has been imposed against the appellants on the basis of the statements recorded on 19.3.2014. These statements were retracted by the appellant. The Ld. Adjudicating Authority in paragraph 39 of the impugned order observed that Ashish Kumar Dutta in his statement dated 31.03.2014 had deviated from his previous statement dated 19.03.2014. Thus, without examining the persons who gave the contradictory statements, the adjudicating authority should not have taken the statement dated 19.03.2014 into cognizance to arrive at a conclusion that the goods seized were liable for confiscation and the appellants were liable for penalty. It is their submission that without following the provisions of Section 138B, the findings for imposition of penalty upon the appellants herein are grossly misdirected, as the same only harp upon the retracted statement dated 19.03.2014. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 18,55,000/- has been imposed on him under section 112 of the Customs Act, 1962. In the Show Cause Notice dated 29.08.2014 as well as Adjudication Order dated 25.08.2015, reliance has been placed upon initial statements dated 19.03.2014 recorded from the said three apprehended persons wherein they allegedly stated that the present appellant was the owner of the seized gold. The appellant in his Reply dated 27.05.2015 had categorically pointed out the discrepancies and contradictions in the said three statements. He has prayed for opportunity of cross-examination of the said three apprehended persons during adjudication, but the adjudicating authority has not allowed cross-examination. Thus, the Appellant No. 4 submits that no adverse conclusion can be arrived at against him on the basis of such contradictory statements of the apprehended persons. (ii) Reliance in this regard is placed upon the following decisions: Sampad Narayan Mukherjee v. Union of India [2019 (366) E.L.T. 280 (Cal.)] Gobinda Das v Commissioner of Customs (Prev.), Kolkata [2023 (385) E.L.T. 722 (Tri.-Kol.)] (ii) The finding of the Ld. Adjudicating Authority against the present appellant at paragraph 43 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the penalties imposed on these Appellants does not commensurate with the offence committed and therefore, he prayed for reduction of the penalties imposed. 3.3. The Ld. Counsel appearing on behalf of the Appellant No. 4 submits that this Appellant has no role in the offence committed and he was available in Chennai on the day when the search was conducted and the apprehended persons who were staying in his house have implicated him in the offence. The Revenue has not brought in any corroborative evidence to implicate the appellant in the alleged offence. Accordingly, he contended that the Appellant No. 4 had no role in the alleged offence in the smuggling of the gold in question. Accordingly, it is prayed that the penalty imposed on him be set aside. 4. The Ld. Authorized Representative of the Revenue submitted that the gold has been seized from the possession of the three persons viz. Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das, who have categorically stated that Shri Partha Ranjan Saha is the owner of the gold and mastermind of the smuggling of the gold. He submits that the apprehended persons were not having any documents in their possession at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold on payment of redemption fine. He also prayed for reduction of the penalties imposed on these Appellants. 6.1. In this regard, we observe that the seized goods were bearing foreign markings and having a purity of 99.90%. Gold with a foreign marking and having 99.90% purity, is a notified item listed under Section 123 of the Customs Act and accordingly, the burden of proving that it is not smuggled gold lies on the person who claims ownership of the gold. In this case, we find that the Appellant Nos. 1, 2 and 3 have claimed ownership of the gold and hence, it is their responsibility to establish that the gold was not smuggled into India. For this purpose, these Appellants have been asked to produce documents in their possession which indicate licit procurement of the said gold. However, the Appellants have categorically admitted that they were not in possession of any such documents. Therefore, the Appellant Nos. 1 to 3 have not discharged their onus of proving the ownership of the gold in question in terms of Section 123 of the Customs Act. Thus, we hold that the adjudicating authority has rightly confiscated the gold under Section 111(b), 111(d) and 111(f) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jewellery purchased by cash. This aspect of the matter was never established by the respondent and the co notices. Therefore, the leamed 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 under Section 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. 25. 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 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as clearly erred in directing the release of the seized articles on the payment of redemption fine. We had an occasion in Nidhi Kapoor to notice the deleterious effect that illegal import of gold could have on the economy of the country itself. We are thus of the considered opinion that the CESTAT has clearly erred in failing to interfere with the order in original and which had permitted the respondent to seek release on payment of redemption fine. 6.4. By relying on the decisions cited supra, we hold that the gold cannot be released to the Appellants on payment of redemption fine. Accordingly, we uphold the order of confiscation of the seized gold. 6.5. Regarding imposition of penalties on the Appellant Nos. 1, 2 and 3, it has been submitted that they are the owners of the gold, but were not having any documents to establish the licit procurement of the gold. As the gold in question has been absolutely confiscated, we are of the view that the penalties imposed on these Appellants is high as compared to the value of gold involved and the nature of offence committed in this case. Therefore, considering the roles played by the Appellants, we observe that the penalties imposed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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