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TMI Blog2025 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is devoid of merit inasmuch as no evidence has been placed on record by the Revenue in discharging the onus which squarely rests on the department to establish that there has been smuggling of gold into the country and the recovered/seized currency of Rs.1.29 crores from the possession of these four passengers were sale proceeds of the smuggled gold. Needless to mention that burden lies heavily on the Revenue to establish that the currency seized was the sale proceeds of the smuggled gold. Similar view has been expressed by the Tribunal in the cases of Wall Street Finance Ltd. Vs. CC [2006 (9) TMI 437 - CESTAT, MUMBAI] and CC (Preventive), Mumbai Vs. Sadashiv R. Lele [2005 (5) TMI 176 - CESTAT, MUMBAI]. The case records reveal that the Revenue even could not able to trace or bring on record the statements of the person who handed over the currency to these four persons at Chennai, as mentioned in the notice. The statements furnished by the four persons on 05.09.2013 were retracted on the next day i.e. on 06.09.2013. Therefore, in the said circumstances, it is necessary to establish through the corroborative and independent evidence about the smuggling of the gold and the curr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these four persons were recorded and later they were arrested. On completion of investigation, it is alleged that the Indian currency seized from the four persons were the sale proceeds of the smuggled gold which was received by these four persons at the instance of one Shri K.V. Kunhimohammed; hence liable to be confiscated. Consequently, a show-cause notice was issued on 28.02.2014 proposing confiscation of seized currency amounting to Rs.1.29 crores under Section 121 of the Customs Act, 1962 and also penalty under Section 112 and 117 of the Customs Act on all four persons and Shri K.V. Kunhimohammed. On adjudication, the Indian currency totalling to Rs.1.29 crores directed to be confiscated under Section 121 of the Customs Act and penalty of Rs.2.00 lakhs imposed each on Shri Jamsheer P.T., Shri Abdu Samad P., Shri Khairudheen V. and Shri Mohammed Asharaf and Rs.20.00 lakhs on Shri K.V. Kunhimohammed under Section 112(b) of the Customs Act, 1962. Aggrieved by the said order, the present appeals are filed by the above three appellants. 3.1. At the outset, the learned advocate for the appellants has submitted that the Superintendent of Customs (Preventive Division), Calicut inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sale proceeds of the smuggled gold which cannot be relied upon as no such person would disclose that proceeds are of sale of smuggled gold. Further, he has submitted that the person who handed over the cash at Chennai could not be traced by the Department nor any details regarding the smuggling, passenger, quantity of gold, details of sale etc. brought out on record. They have submitted that all these four persons had retracted the statements on 06.09.2013; hence their statements recorded on 05.09.2013 cannot be basis for holding that the currency recovered from them are sale proceeds of smuggled gold. Further, he has submitted that the denial of cross-examination of the witnesses as requested by the appellants during the course of adjudication on flimsy grounds indicates that the order was passed in haste and hence, bad in law. He has submitted that non-accounting of the cash under seizure cannot be a ground to hold that it was sale proceeds of smuggled gold. In support, he referred the following decisions:- i. Sarin and Sarin Vs. CCE Kanpur [2014(310) ELT 404 (Tri.Delhi)] ii. Hem Raj Soni Vs. CC Jaipur [2014(308) ELT 600 (Tri. Delhi)] iii. Wall Street Finance Limited Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plained the details in the slips showing the transaction of the gold. The slips recovered from Shri Khairudheen showed writing such as 1006X3025 = 30,43,150/- and similarly, other persons had paper slips with weight in grams multiplied by rate and the total amount. Further, he has submitted that Shri K.V. Kunhimohammed was not able to provide sufficient proof for the licit sources of the huge amount of cash seized and he has submitted details of withdrawal from his wife's account for a sum of Rs.24,27,000/- over a period of four years. If the gold trading business was of legal and licit nature, sending cash through carriers would have been avoided. Further, the statements of the carriers explained how they were entrusted the cash, every details/contents in the slips, manner in which they were torn into half, the writing in Tamil, the rate of gold in grams shown indicating the transaction happened in relation to smuggled gold. The reply filed by the noticees could not explain how the slips written in Tamil were recovered along with cash seized, which is enough to link the smugglers and Shri K.V. Kunhimohammed as the Tamil is not the spoken language of either Shri K.V. Kunhimohammed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the border / frontier and it is almost impossible to distinguish or identify smuggled goods from licitly imported ones, once they move into the domestic tariff area. Further he observed that the currency must have been the sale proceeds of smuggled gold. Further, referring to the principle laid down by the Hon'ble Supreme Court in D. Bhoormull's case that preponderance of probability be given emphasis and the case is not required to be proved through mathematical precision, he had observed that Shri K.V. Kunhimohammed has neither been able to provide the sources of amount of cash seized nor able to provide evidence about handling gold imported legally into the country and the slips recovered from the four persons from whom cash was seized written in Tamil, not a spoken language of either Shri K.V. Kunhimohammed or the carriers, indicated a link between the cash transaction in gold, all together provide a high level of probability that the seized cash indeed represents sale proceeds of gold into the country through Chennai airport. 9. In our view, the said finding of the learned Commissioner is devoid of merit inasmuch as no evidence has been placed on record by the Revenue in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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