Custom, Excise & Service Tax Tribunal
Shri Partha Ranjan Saha vs Kolkata(Prev) on 4 December, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 2
Customs Appeal No. 75118 of 2016
(Arising out ofAdjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015 read
with Corrigendum dated 17.11.2015 passed by the Commissioner of Customs
(Preventive), West Bengal, Kolkata, Custom House, 3 rd Floor, 15/1, Strand Road,
Kolkata - 700 001)
Shri Ashish Kumar Dutta : Appellant
Village - Rainagar, P.O. & P.S.: Hili,
District: Dakshin Dinajpur, PIN - 733 126
VERSUS
Commissioner of Customs (Preventive) : Respondent
Custom House, 3rd Floor, 15/1, Strand Road,
Kolkata - 700 001
WITH
Customs Appeal No. 75119 of 2016
(Arising out of Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015read
with Corrigendum dated 17.11.2015 passed by the Commissioner of Customs
(Preventive), West Bengal, Kolkata, Custom House, 3 rd Floor, 15/1, Strand Road,
Kolkata - 700 001)
Shri Goutam Saha : Appellant
Village - Baikunthapur, P.O. & P.S.: Hili,
District: Dakshin Dinajpur, PIN - 733 126
VERSUS
Commissioner of Customs (Preventive) : Respondent
Custom House, 3rd Floor, 15/1, Strand Road,
Kolkata - 700 001
WITH
Customs Appeal No. 75120 of 2016
(Arising out of Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015
read with Corrigendum dated 17.11.2015 passed by the Commissioner of Customs
(Preventive), West Bengal, Kolkata, Custom House, 3 rd Floor, 15/1, Strand Road,
Kolkata - 700 001)
Shri Ranjit Das : Appellant
Village - Rainagar, P.O. & P.S.: Hili,
District: Dakshin Dinajpur, PIN - 733 126
VERSUS
Commissioner of Customs (Preventive) : Respondent
Custom House, 3rd Floor, 15/1, Strand Road,
Kolkata - 700 001
Page 2 of 19
Appeal No(s).: C/75118-75121/2016-DB
AND
Customs Appeal No. 75121 of 2016
(Arising out of Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015
read with Corrigendum dated 17.11.2015 passed by the Commissioner of Customs
(Preventive), West Bengal, Kolkata, Custom House, 3 rd Floor, 15/1, Strand Road,
Kolkata - 700 001)
Shri Partha Ranjan Saha, : Appellant
Village - Baikunthapur, P.O. & P.S.: Hili,
District: Dakshin Dinajpur, PIN - 733 126
VERSUS
Commissioner of Customs (Preventive) : Respondent
Custom House, 3rd Floor, 15/1, Strand Road,
Kolkata - 700 001
APPEARANCE:
Shri Nilotpal Chouwdhury, Advocate
[In respect of Customs Appeal Nos. 75118 to 75120 of 2016]
Shri Arijit Chakraborty, Advocate
[In respect of Customs Appeal No. 75121 of 2016]
For the Appellant(s)
Shri Subrata Debnath, Authorized Representative
For the Respondent
CORAM:
HON'BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL)
HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NOs. 77715-77718 / 2024
DATE OF HEARING: 02.12.2024
DATE OF DECISION: 04.12.2024
ORDER:[PER SHRI K. ANPAZHAKAN] Shri Ashish Kumar Datta, Shri Goutam Saha and Shri Ranjit Das (hereinafter referred to as the "Appellant No.1", "Appellant No. 2" and "Appellant No. 3" respectively) have filed the Customs Appeal Nos. 75118 to 75120 of 2016 against the Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015 challenging the confiscation of the gold in question and praying for waiver of the penalties imposed on them.
Page 3 of 19Appeal No(s).: C/75118-75121/2016-DB 1.1. Shri Partha Ranjan Saha (hereinafter referred to as "Appellant No. 4") has filed the Customs Appeal No. 75121 of 2016 seeking waiver of the penalty imposed on him vide the Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015.
1.2. Since all these appeals arise out of a common order, they are taken up for disposal by this common order.
2. Brief facts of the case are that on a specific intelligence received by the Directorate of Revenue Intelligence (DRI), Kolkata pertaining to smuggling of gold of foreign origin into India from Bangladesh, the Officers intercepted three persons, by name, Shri Ashish Kumar Datta (Appellant No. 1), Shri Goutam Saha (Appellant No. 2) and Shri Ranjit Das (Appellant No. 3) near the premises of 168, B.T. Road, Kolkata - 700 108 on 19.03.2014 at around 3:30 p.m. In response to a query by the said Officers, they admitted to have been carrying gold bar/biscuits of foreign origin in their person. However, none of the said three persons could produce any licit documents in support 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. 1was carrying two (02) pieces of gold bars bearing foreign markings/inscriptions weighing 1000 grams each and having a purity of 99.90%.Page 4 of 19
Appeal No(s).: C/75118-75121/2016-DB 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 said date.
2.3. On completion of the investigation, a Show Cause Notice dated 29.08.2014 was issued to all the Appellants and after due process, the notice was adjudicated vide the impugned order wherein the ld. adjudicating authority has absolutely confiscated the seized goods i.e., 36 pieces of gold bars/biscuits having total weight of 5965.76 grams and valued at Rs.1,80,56,424 under Section 111(b), 111(d) and 111(f) of the Customs Act, 1962 and imposed penalties of: -
(i) Rs.6,25,000/- (Rupees Six Lakh Twenty Five Thousand only) on Shri Ashish Kumar Dutta,
(ii) Rs.6,50,000/- (Rupees Six Lakh Fifty Thousand only) on Shri Goutam Saha, and Page 5 of 19 Appeal No(s).: C/75118-75121/2016-DB
(iii) Rs.5,80,000/- (Rupees Five Lakh eighty thousand only) on Shri Ranjit Das, and a penalty of (iv) Rs.18,55,000/- (Rupees Eighteen Lakh Fifty Five Thousand only) on Shri Partha Ranjan Saha.
All penalties were imposed under Section 112 of the Customs Act, 1962.
2.4. Aggrieved by the above order, the Appellants have filed the present appeals.
3. The contentions in respect of the Appellants viz. Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das (Customs Appeal No. 75118 to 75120 of 2016) are as under: -
(i) The present Appeal arises out from Seizure Case No. DRI/KZU/AS/ENQ-7 (INT- 7)/2014 dated 19.3.2014 culminating in Order-in-Original No. 29/CUS/CC(P)/WB/2015 dated 25.8.2015 whereby 36 pcs. of gold bars having total weight 5965.75 gms. collectively valued at Rs.1,80,56,424/- was confiscated under Section 111(b), 111(d) & 111(f) of the Customs Act, 1962 and penalty was imposed under Section 112 of the Customs Act, 1962.Penalty of Rs.6,25,000/- was imposed upon Shri Ashish Kumar Dutta; Penalty of Rs.6,50,000/- was imposed upon Shri Goutam Saha; Penalty of Rs.5,80,000/- was imposed upon Shri Ranjit Das, all under Section 112 of the Customs Act, 1962.
(ii) 2 pcs. of gold weighing 2,000 gms. were recovered from Shri Ashish Kumar Dutta, 18 pcs. of gold weighing 116.64 gms. each having weight of 2099.52 gms were recovered from Page 6 of 19 Appeal No(s).: C/75118-75121/2016-DB Shri Goutam Saha and 16 pcs. of gold weighing 116 gms. each having total weight 1866.24 gms. were recovered from Shri Ranjit Das, near premises at 168, B.T. Road, Kolkata.
(iii) It is evident that it is a town seizure and way beyond the limitations and boundaries of any international border and under such given circumstances, even assuming that the seized gold has foreign markings on it, cannot ipso 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 Page 7 of 19 Appeal No(s).: C/75118-75121/2016-DB the same only harp upon the retracted statement dated 19.03.2014. The appellants submit that the initial statements all dated 19.03.2014 were retracted by the apprehended persons vide petition dated 04.04.2014 before the Ld. CMM, Calcutta. Under such circumstances, imposition of penalty upon the present appellants on the basis of such retracted initial statements of the apprehended persons, is seriously bad in law. In the present case if the said initial retracted statements of the apprehended persons, who were not examined u/s 138B of the Customs Act, 1962 are taken out of record, there would be nothing against the appellants herein to implicate or connect them in the present case.
(v)The appellants rely upon the following decisions in this regard:
• Sampad Narayan Mukherjee v. Union of India [2019 (366) ELT 280 (Cal.)] • Gobinda Das V. Commissioner of Customs (Prev.), Kolkata [2023 (385) ELT 722 (Tri, Kol)] • Flemingo DFS Pvt. Ltd. V. Commissioner of Customs, Vishakapatnam[2018 (363) ELT 450 (Tri. Hyd.)] • G. Tech Industries V. Union of India [2016 (339) ELT 209 (P&H)]
(vi) The appellants submit that smuggling in its true sense indicates carrying of goods from foreign country into the domestic country without following the due process of law which is not the case in the present case and as such, gold being not a prohibited item at all, cannot be confiscated without allowing the appellants to redeem the Page 8 of 19 Appeal No(s).: C/75118-75121/2016-DB same by application of Section 125 of the Customs Act, 1962. Hence, in view of Section 125 of the Customs Act, 1962, the goods are required to be released upon payment of redemption fine to the person from whom the goods were seized. Reliance in this regard is placed on the following decisions:
• Roshni MathurdasKothadia V. Commissioner of Customs, Hyderabad [2019 (359) ELT 1784 (Tri. Hyd.)] • Commissioner of Customs Delhi V. Ashwini Kumar @ Amanullah [2021 (376) ELT 321 (Tri. Del)] • Commissioner Central Excise and Service Tax, Lucknow V. Islahuddin [2018 (364) ELT 168 (Tri. All.)] • Rajesh Verma V. Commissioner of Customs, Amritsar [2021 (378) ELT 502 (Tri Chan.)] • Mohd. Azeem V. Commissioner of Customs (Airport), Chennai [2005 (186) ELT 440 (Tri Chennai)]
(vii) Thus, the appellants submits that the penalty imposed be set aside and the goods be allowed to be redeemed along with consequential benefits.
3.1. The contentions put forth by Shri Partha Ranjan Saha (Customs Appeal No. 75121 of 2016) are as under: -
(i) In the impugned order a penalty of 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 Page 9 of 19 Appeal No(s).: C/75118-75121/2016-DB 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 the Adjudication Order is wholly based upon the said initial statements dated 19.03.2014 of the co-
accused. It is submitted that in absence of any corroborative evidence, imposition of penalty only on the basis of statement of co-accused, is seriously bad in law and in the present case there is no such corroborative evidence against the present appellant. Reliance in this regard is placed upon the following decisions:
Page 10 of 19Appeal No(s).: C/75118-75121/2016-DB • Francis Stanly @ Stalin v. Intelligence Officer, NCB, Thiruvananthapuram [(2006) 13 SCC 210] • Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate [2007 (220) E.L.T. 3 (S.C.)]
(iii) The allegation of non-appearance of the Appellant No. 4 during the investigation, is of no consequence. Statement dated 09.04.2014 of Smt. Laxmi Saha, mother of present appellant, clearly shows that the appellant was at Chennai for treatment at that relevant point of time. The alleged subsequent two Summons both dated 22.04.2014, were stated to be returned by the postal authority and as such, admittedly, the appellant never received any Summons for his appearance before the Investigating Authority. On the basis of such fact, the finding of the Ld. Adjudicating Authority against the present appellant at para 43 16 of the Adjudication Order that "I think this is enough circumstantial evidence to inculpate Shri Partha Ranjan Saha" cannot sustain in law.
(iv) From paragraph 33(i) of the Adjudication Order, it would be evident that the initial statements all dated 19.03.2014 were retracted by the apprehended persons vide petition dated 04.04.2014 before the Ld. CMM, Calcutta (erroneously typed as "CJM Court, Calcutta") under such circumstance, imposition of penalty upon the present appellant on the basis of such retracted initial statements of the apprehended persons, is seriously bad in law.
Page 11 of 19Appeal No(s).: C/75118-75121/2016-DB
(iv) in the present case if the said initial retracted statements of the apprehended persons, who were not examined u/s 138B of the Customs Act, 1962 and whose cross- examination was also not allowed to the appellant, are taken out of record, there would be nothing against the appellant herein to implicate or connect him with the present case.
3.2. In view of the above, the Ld. Counsel appearing on behalf of the Appellant Nos. 1, 2 and 3 prayed for setting aside the confiscation of the goods in question and for release of the gold on payment of redemption fine. He also submits 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 Page 12 of 19 Appeal No(s).: C/75118-75121/2016-DB smuggling of the gold. He submits that the apprehended persons were not having any documents in their possession at the time of seizure, for the licit purchase of the gold. Even now they are not able to produce any documents for its legal procurement. He referred to the decision of the Hon'ble Calcutta High Court in the case of Commissioner of Customs (Preventive) v. Shri Rajendra Kumar Damani [2024 (5) TMI 730 - Calcutta High Court] wherein the Hon'ble High Court has held that in terms of Section 123 of the Customs Act, in respect of the gold with foreign markings and having 99.9% purity, the onus is on the person who claims ownership of the gold that they were not smuggled gold; as the persons involved have not yet discharged their onus, the goods have been rightly confiscated. He also cites the decision of the Hon'ble Delhi High Court in the case of Commissioner of Customs (Export) v. Ashwini Kumar Alias Amanullah [CUSAA 37/2021 & CM APPL. 34847/2023 dated 15.09.2023 - Del HC] wherein the Hon'ble High Court has observed that seized goods cannot be released on payment of redemption fine. He has also referred to the decision in the case of Nidhi Kapoor &ors. v. Principal Commissioner and Addl. Secretary to the Government of India &ors. [W.P. (C) 8902/2021 dated 21.08.2023 - Del HC] wherein it has been held that when the burden under Section 123 ibid. is not proved, the gold seized is liable for confiscation. He therefore supported the impugned order confiscating the gold and imposing penalties on the Appellants.
5. Heard both sides and perused the appeal records.
Page 13 of 19Appeal No(s).: C/75118-75121/2016-DB Customs Appeal No(s). 75118 to 75120 of 2016:
6. We observe that a total quantity of 36 pieces of gold weighing 5965.76 grams were sized from Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das, the Appellants herein, on 19.03.2014. It is on record that they were not having any documents for the licit procurement of the said gold. The Ld. Counsel appearing on their behalf have admitted that even today, they are not having any documents for the licit purchase of the said gold. His submission is that gold is not a prohibited item and according to the decision cited by him in the case of Commr. of Cus., New Delhi v. Ashwini Kumar Alias Amanullah [2021 (376) E.L.T. 321 (Tri. - Del.)], the goods could not be absolutely confiscated and ought to have been released on payment of redemption fine as per Section 125 of the Customs Act, 1962. Accordingly, he prayed for setting aside the order of confiscation and for release of the 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 Page 14 of 19 Appeal No(s).: C/75118-75121/2016-DB 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 Act, 1962.
6.2. Regarding the prayer of the Appellant Nos. 1 to 3 for release of the gold, we observe that 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, we hold that the gold cannot be released to them. This view is supported by the decision of the Hon'ble Calcutta High Court in the case of Commissioner of Customs (Preventive) v. Shri Rajendra Kumar Damani [2024 (5) TMI 730 - Calcutta High Court]. The relevant part of the said decision is reproduced below:-
"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 evidence. After referring to certain decisions, the tribunal hold that the currency seized from the respondent and the other two co-noticees were not established by the revenue with corroborative evidence to show that the same are the sale proceeds of smuggled gold and then proceeds to refer to a certain decision and has recorded its conclusion in paragraph 26 holding that the respondent and the two co-noticees have submitted that the smuggled/procured gold in question is made out of old gold jewellery purchased in cash and the said fact has not been denied by the revenue by any Page 15 of 19 Appeal No(s).: C/75118-75121/2016-DB cogent evidence, therefore the gold in question is not liable for confiscation and the same is required to be released. Further the tribunal holds that the revenue has failed to establish the fact that the cash recovered from the respondent and the two co- noticees are the sale proceeds of the smuggled gold and therefore the cash seized cannot be confiscated and the same is required to be released. Further the tribunal holds that no penalties are imposable on the respondent and the two co-noticees.
24. What is important to note is that though the respondent took a plea that the gold bars was made out of old gold jewellery purchased in cash it was a very faint plea which was raised by the respondent and the co-noticees. Assuming such a plea was required to be considered, the onus is on the respondent and the co-noticees to establish with documents that the gold which was seized was from and out of the old gold 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 Supreme Court in Vinod Solank! 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 Page 16 of 19 Appeal No(s).: C/75118-75121/2016-DB 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 the presence of two independent witnesses and the DRI officers and copy of which was handed over to the respondent and the other two co-noticees. Further we find there was nothing on record before the learned tribunal to hold that mere melting of old gold jewellery will yield gold of less purity and considering the quantity which has been seized, it can never be the case of the respondent or the other two co-noticees that they have done the melting process at their residence as such melting requires expertise and also use of several chemicals. Thus, the observations of the tribunal have to be held to be without any basis or foundational facts or documents."
6.3. Regarding the prayer of the appellant for release of the gold on payment of redemption fine, we observe that the ownership of the gold has not been established. Thus, the gold cannot be released to the appellants. We observe that this view is supported by the decision in the case of Commissioner of Customs (Export) v. Ashwini Kumar Alias Amanullah [CUSAA 37/2021 & CM APPL. 34847/2023 dated 15.09.2023 - Del HC] wherein it has been held that:-
"5. We find that the import of gold is strictly regulated and is permitted only through certain identified agencies, who too must import the same in accordance with a restricted and regulated regime which stands created in terms of the various Circulars issued by Customs as well as the Reserve Bank of India.Page 17 of 19
Appeal No(s).: C/75118-75121/2016-DB
6. In the facts of the present case, we thus find that the Adjudicating Authority has 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 them are on the higher side and it can be reduced. Accordingly, we reduce the penalties imposed on them as follows: -
i. The penalty imposed on Shri Ashish Kumar Dutta is reduced from Rs.6,25,000/- (Rupees Six Lakh Twenty Five Thousand only) to Rs.3,50,000/- (Rupees Three Lakh Fifty Thousand only) under Section 112 of the Customs Act, 1962.Page 18 of 19
Appeal No(s).: C/75118-75121/2016-DB ii. The penalty imposed on Shri Goutam Saha is reduced from Rs.6,50,000/- (Rupees Six Lakh Fifty Thousand only) to Rs.4,00,000/- (Rupees Four Lakh only) under Section 112 of the Customs Act, 1962.
iii. The penalty imposed on Shri Ranjit Das is reduced from Rs.5,80,000/- (Rupees Five Lakh eighty thousand only) to Rs.2,00,000/- (Rupees Two Lakh only).
Customs Appeal No. 75121 of 2016:
7. Regarding the role played by the Appellant No. 4, namely, Shri Partha Ranjan Saha, we observe that he was not available in his house on 09.04.2014 when the search was conducted. It is on record that he was in Chennai for treatment on the said date. His name has been implicated by the co-accused Shri Ashish Kumar Dutta in his statement dated 19.03.2014. We find that this statement has been retracted by Shri Ashish Kumar Dutta vide petition dated 04.04.2014 before the Ld. CMM, Calcutta, when he was under custody. Thus, we hold that this statement cannot be relied upon to implicate the Appellant No. 4 in this offence case. We also observe that the investigation has failed to bring in any other evidence on record to highlight the role played by the Appellant No. 4 in the smuggling of the gold in question. Thus, we find that except the statement of Shri Ashish Kumar Dutta, there is no other piece of evidence available on record to implicate Shri Partha Ranjan Saha in the offence. Since the investigation could not establish any case against this Appellant, we hold that the penalty imposed on the Appellant No. 4 viz. Shri Partha Ranjan Saha is not sustainable and accordingly, we set aside the same.
Page 19 of 19Appeal No(s).: C/75118-75121/2016-DB
8. In view of the above, we pass the following order: -
(a) We uphold the confiscation of the gold having a total weight of 5965.76 grams and valued at Rs.1,80,56,424 under Section 111(b), 111(d) and 111(f) of the Customs Act, 1962.
(b) We hold that the goods cannot be released on payment of redemption fine.
(c) The penalties imposed on the Appellant Nos. 1, 2 and 3 stand reduced to Rs.3,50,000/-
, Rs.4,00,000/- and Rs.2,00,000/- respectively, as discussed at paragraph 6.5 hereinabove.
(d) The penalty imposed on the Appellant No. 4 stands set aside.
9. The appeals are disposed of in the above manner.
(Order pronounced in the open court on 04.12.2024) Sd/-
(R. MURALIDHAR) MEMBER (JUDICIAL) Sd/-
(K. ANPAZHAKAN) MEMBER (TECHNICAL) Sdd