Customs, Excise and Gold Tribunal - Tamil Nadu
Pandurang Bagwan Patel And Anr. vs Collector Of Central Excise And Customs on 30 July, 1986
Equivalent citations: 1987(10)ECR682(TRI.-CHENNAI), 1987(27)ELT713(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. Since the above appeals are connected and arise out of a common order, they are taken up together and disposed of by a common order. The appeals are directed against the order of the Additional Collector of Customs, Madurai dated 4.7.85, confiscating Indian currency of Rs. 1 lakh under Section 121 of the Customs Act, 1962 (hereinafter referred to as the 'Act') and rejecting the appellant's claim thereto under law.
2. The Central Excise Officers attached to the Preventive Unit, Madurai, on the basis of prior information, visited the premises of the appellants at Door No. 4-A, Mettukammala 4th Lane, South Avanimoola Street, Madurai where the appellants in partnership are having a silver refinery. The appellant, Panduranga Bagwan Patel, was present at the time when the authorities found six gold bars in rectangular shape and another gold triangular bit, totally weighing 2918.250 gms. Apart from it, on search the authorities also found a gunny bag in the midst of leco coal bags which on examination was found to contain Indian currency to the tune of about Rs. 1 lakh. Since the appellants were neither licensed gold dealers nor certified goldsmiths, the gold and the currency were seized by the authorities as per law under mahazar attested by witnesses. Both the appellants gave statements before the authorities immediately on seizure on 28.6.83 completely disowning the gold and the currency under seizure. It is in these circumstances after further investigation in respect of the proceedings instituted against the Appellants, the impugned order came to be passed as against which the present appeals arise.
3. Shri Narayanan, the learned Counsel for the appellants submitted that the seizure of Rs. 1 lakh currency concerned in the appeal belonged to the appellants herein and inasmuch as the same was recovered from the appellants'' business premises, the appellants would be entitled to claim the same, particularly when there is no evidence on record to show that the same represented the sale proceeds of contraband goods. It was further urged that notwithstanding the fact that the appellants immediately on seizure have given statements before the authorities on 28.6.83 completely disowning and disclaiming the currency under seizure, the appellants' claim for the same made in the reply to the show cause notice dated 27.1.84 should have been accepted and the currency returned to the appellants, particularly in the absence of evidence that the currency represented the sale proceeds of contraband goods. The learned Counsel also urged that since the appellants did not have a copy of their statements, they could not immediately make a claim to the currency under seizure and so the belated claim of the appellants to the currency under seizure cannot be construed to be a circumstance against the appellants. The learned Counsel also contended that inasmuch as the authorities had no reason to believe that the currency in question represented the sale proceeds of contraband goods, the seizure of the same is against law and consequently the confiscation of the same under the impugned order is bad in law. It was also contended that the statements attributed to the appellants and dated 28.6.83 were not voluntary and this fact had been made abundantly clear by the appellants in their petition to the Collector of Customs or, 9.7.1983 and also before the Judicial Magistrate at the time when the appellants were produced for remand. Finally, the learned Counsel contended that in any event the absolute confiscation of the currency is not warranted under law inasmuch as the currency under seizure would come within the mischief of the term "any other goods" covered by the second part of Section 125 of the Act entitling the Appellants to redemption of the same.
4. Shri Krishnan, the learned Departmental Representative submitted that the appellants have categorically disowned any connection with the currency under seizure by their statements before the authorities immediately on seizure on 28.6.83. The appellants made a claim for the first time only in reply to the show cause notice on 27.1.84 and this inordinate delay, coupled with the earlier admissions of the appellants, would disentitle the appellants to the currency in question. The learned D.R. further contended that no explanation at all has been given by the appellants for making a claim of the currency in question after such an inordinate delay and even the plea that the appellants were not able to make a claim in the absence of the copy of the statements recorded from them is also not legally tenable inasmuch as the appellants were supplied with a copy of the statements on 6.7.83 and the appellants sent up a petition to the authorities on 9.7.83 wherein also admittedly no claim for the currency was made at all. The learned D.R. further argued that the seizure was only on a reasonable belief particularly because it was on the basis of proper information, as made clear under the impugned order. The learned D.R. also drew our attention to the various circumstances such as, concealment of the huge quantity of currency under seizure in a gunny bag in the midst of leco coal bags, recovery of substantial quantity of gold from the appellants' premises, which is a silver refinery not entitled to keep any gold, statement of one Baskaran to the effect that the gold under seizure was illicit gold, to contend that there were enough circumstances to induce a reasonable belief in the minds of the authorities to effect the seizure of the gold and currency in question. The learned D.R. also urged taht the statements recorded from the appellants are voluntary and true and merits acceptance and the retraction has to be rejected.
5. We have carefully considered the submissions of the parties herein. The primary and fundamental question that arises for our consideration at the outset is whether the appellants are entitled to make a claim to the currency under seizure and persecute the appeal. In other words, the question would be whether there is any evidence on record to indicate that the currency under seizure ever belonged to the appellants or were under the appellants' custody or possession and the appellants could claim any right over the same under law. Immediately on seizure the admitted fact remains that statements were recorded from the appellants on 28.6.83. In the statement recorded from Appellant Vasanth Ramachandra Rassal, he has stated in respect of the currency in question. -
"I do not know about its owner, why it was brought to our shop and whether it was sale proceeds of illicit gold already disposed of or was intended for purchase of gold. I have no objection to the amount being confiscated to Government."
Likewise, appellant Panduranga Bagwan Patel in his statement before the authorities on 28.6.83 has stated in respect of the currency under seizure, "It should be sale proceeds of gold. I have no objection in its being confiscated to Government."
We have gone through the statements of the appellants and we are satisfied that the statements are true and voluntary. We would like to observe in this context that notwithstanding the fact that seizure of Rs. 1 lakh was made by the authorities, no whisper of a claim as it were, was ever made by any of the claimants at any time till after the appellants chose to give a reply to the show cause notice on 27.1.84. This conduct of total inaction on the part of the appellants would considerably militate against the present plea of the appellants claiming a right to the currency under seizure. Though the appellants at the time when they were produced for remand complained of ill-treatment by the Customs authorities, no claim for the currency was ever made by any of the appellants. Likewise, even when a very detailed petition was sent to the Higher authorities on 9.7.83 by the appellants detailing the circumstances under which the aforesaid statements of the appellants came to be recorded, no claim for the currency in question has been made. To a query from the Bench to explain this peculiar unnatural and understandable conduct of the appellants, the learned Counsel replied that the authorities by their communication dated 15.7.83 informed the appellants that it would be enough if they said whatever they had to say before the adjudicating authority at the appropriate time and so the appellants did not make a claim. We went through these communications referred to by the learned Counsel dated 15.7.83 addressed to the appellants by the Superintendent of Customs, Madurai and we find that this is in response to the appellants' letter dated 9.7.83 wherein the appellants have written that they had understood the contents of the statements recorded from them by the authorities on 28.6.83 after the receipt of a copy thereto. It is further stated in that letter that the appellants were forced to sign the said statements and the statements did not contain correct and true facts and particulars regarding the alleged possession of gold and currency and that the appellants would be sending a detailed petition to the Collector' of Customs in due course. We do not find any claim being made by the appellants specifically with reference to the currency even in this communication of the appellants. The learned Counsel fairly conceded that no detailed petition as referred to in the appellants' letter dated 9.7.83 and referred to supra was ever sent to any authority by the appellants in view of the Superintendent's letter dated 15.7.83. We have gone through the remand report of the Judicial Magistrate dated 29.6.83 and we have also gone through the complaint submitted by the wife of the appellant Vasanth Ramachandra Rassal dated 2,7.83. This complaint of appellant Rassal's wife though is very comprehensive and a detailed one, there is not of a slightest whisper of claim about the appellants' right to the currency under seizure. We are at a loss to understand as to why no claim at all had been made by the appellants in any of the aforesaid communications if really the appellants had a right to the same and in the absence of any such claim if the conduct of the appellants is viewed in the background of the appellants' statement dated 28.6.83 which we have held to be true and voluntary, the inference is irresistible that the appellants have no claim or right of any kind under law to the currency under seizure. The plea of the learned Counsel that since the currency was seized from the business premises of the appellants, the appellants would be entitled in law to claim constructive possession of the same and in that view would be entitled to putforth their claim however belated it might be, is not legally tenable. When the appellants have categorically stated that they have nothing to do with the currency and the currency in question does not belong to them and further clearly stated that the same could be confiscated by the authorities, we are not able to understand as to how and on what grounds of law the appellants could make a contrary claim belatedly, particularly in reply to the show cause notice. We have already adverted to the conduct of the appellants in not making a claim to the currency in any of the previous communications such as complaint to the Magistrate, bail application, petition to the authorities and other documents or in the detailed petition sent to the authorities referred to above. Since the appellants have clearly stated at the earliest opportunity that they are in no way concerned with the currency at all, we are of the view that the appellants having admitted they have no title of any kind to the currency cannot go back on it and change their stand at a later point of time and belatedly make a claim in reply to the show cause notice. We, therefore, hold that the evidence on record clearly establishes that the appellants are not entitled to make any claim in respect of the currency under seizure; nor the appellants were able to satisfy us on evidence about their rights or title to the same under law. In this view of the matter we find that the appellants have no legal title to the currency under seizure and the appeals in the circumstances are misconceived in law. Since the only question that arises for consideration is with reference to the appellants' right to the currency under seizure and since we have already held for the reasons indicated above that the appellants are neither the owners of the currency nor have any title or right of any kind under law to make a claim therefor, we uphold the finding of the adjudicating authority under the impugned order with reference to the confiscation of the currency and reject these appeals. In view of our findings that the appellants are not entitled to the currency in question under law, we do not feel called upon to go into the other question with reference to the applicability of Section 121 or 125 of the Customs Act, 1962. In the result the appeals fail and are dismissed.