Customs, Excise and Gold Tribunal - Delhi
Kamlesh Rastogi vs Collector Of Customs on 8 December, 1994
Equivalent citations: 1995(75)ELT557(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. The above appeals arise out of the order of the Collector of Customs, New Delhi confiscating absolutely Indian currency of Rs. 2,40,000/- seized on 13-2-1985 from the dicky of scooter driven by Ashok Kumar Rastogi, accompanied by Ram Chander Rastogi on the pillion, on the ground that it represents sale proceeds of smuggled gold, and imposing personal penalty of Rs. 10,000/- each on Shri Ashok Kumar Rastogi and Shri Kamlesh Rastogi under Section 112 of the Customs Act and identical penalty on the above two appellants under Section 74 of the Gold (Control) Act, 1968.
2. The brief facts of the case are that on 13-2-1985 the Gold (Control) Preventive Officers of Central Excise Collectorate, New Delhi intercepted Shri Ashok Kumar Rastogi and his brother Ram Chander Rastogi near Red Fort and during the course of the search of the scooter being driven by Ashok Kumar Rastogi, Indian currency of Rs. 2.4 lakhs was recovered from the helmet box of the scooter. Shri Ashok Kumar Rastogi stated that the seized currency was the sale proceeds of the smuggled gold with which he was dealing, along with his father and his brother, Shri Kamlesh Rastogi at their shop in Maliwara. He further stated that he was going along with his brother Ram Chander Rastogi to meet one Shri Jhanda Singh who was the servant of Sant Lal (Cloth Merchant) for the purchase of smuggled gold. Shri Ram Chander Rastogi stated that Kamlesh Rastogi had given the seized currency to Ashok Kumar Rastogi and asked both these brothers to go and pay Shri Jhanda Singh for smuggled gold of foreign origin procured from Shri Jhanda Singh. In his statement dated 11-3-1985 Kamlesh Kumar Rastogi deposed that the seized amount was the joint money of the family which was meant for purchasing a house and denied that the money represented the sale proceeds of contraband gold. Show cause notices were issued to the appellants herein to which they replied denying all the allegations. The adjudicating authority rejected the defence that Ashok Kumar Rastogi's statement was not a voluntary one and discarded the explanation proffered regarding acquisition of the seized currency and passed the impugned order. Hence these appeals. Our findings are confined to the appeals under the Customs Act as no separate appeals have been filed under the relevant provisions of the Gold (Control) Act.
3. We have heard Shri L.C. Sikka, learned Counsel for the appellants and Shri Sanjeev Sachdeva, learned SDR for the Revenue and carefully considered their submissions.
4. We find that the case of the Department is based principally upon statements of Shri Ashok Kumar Rastogi and his brother Ram Chander Rastogi. Ashok Kumar Rastogi has clearly admitted that the seized currency was obtained by him by sale of smuggled gold and that the sale proceeds were going to be further used for purchase of smuggled gold. The statement is in his own handwriting. The adjudicating authority has rightly concluded that the statement is voluntary in nature and the medical certificate of the OPD of Lok Nayak Jaiprakash Narain Hospital, recording multiple bruises on Ashok Kumar Rastogi having been issued only late in the evening of the next day i.e. 14-2-1985, it is not possible to relate the injuries noticed to the time when the Customs Officers questioned him i.e. at around 9.00 AM on 13-2-1985. There is substance in the learned SDR's submission that the retraction contained in a letter dated 18-2-1985 was clearly an afterthought because this appellant was not arrested at any point of time and hence nothing deterred him from resiling from his earlier statement at the first available opportunity, instead of which a letter purporting to be a retraction has been sent only 5 days later which appears to be the brain-child of some other person and sent under expert advice to cover the tracks of Ashok Kumar Rastogi. The denial of Jhanda Singh and Sant Lal in involvement in the present offence, in no way alters the position as the statement of Ashok Kumar Rastogi stands independently corroborated by the statement of his brother, Ram Chander Rastogi who has clearly stated that his brothers Ashok Kumar Rastogi and Kamlesh Kumar Rastogi are doing silver and gold business at Maliwara, that on the day of the seizure, he came to his brother's house and Kamlesh Kumar Rastogi gave Rs. 2.4 lakhs to Ashok Kumar Rastogi and asked Ram Chander Rastogi to go with Ashok Kumar Rastogi for making payment of gold of foreign origin without any bill or voucher to Shri Jhanda. He has also stated that Ashok Kumar Rastogi disclosed to the officers that the money seized was the sale proceeds of smuggled gold of foreign origin which had been procured by him from Shri Jhanda a few days ago and this amount was again being delivered by them to Jhanda for purchase of foreign origin gold. It is pertinent to note that Ram Chander Rastogi has not retracted his statement. The absence of anything incriminatory in the statement of Kamlesh Kumar, which was recorded on 11-3-1985 i.e. one month after the seizure does not affect the case of the Department as Kamlesh Kumar has been implicated by both his brothers viz. both Ashok Kumar and Ram Chander Rastogi.
5. Regarding the explanation offered by the appellants with regard to the legal acquisition of the money seized and the contention that the amount was meant for purchase of a house, we can do no better than to reproduce the findings of the adjudicating authority with which we are fully in accord :
"I have to state that if the money was really meant for the purchase of the house then it should have been so stated by Shri Ashok Kumar Rastogi and Shri Ram Chander Rastogi at the time of recording of their statements. Neither of them had, during the interrogation by the officers, mentioned that the money was meant for the purchase of the house. In this regard the statement of Shri Ram Chander Rastogi is particularly important and he has not retracted from it till date. Similarly, as per the evidence produced by the party itself and as per the verification made by the Department it appears that it is difficult to relate the amount seized with the transactions indicated by the party. For instance, no doubt the transaction relating to sale of gold by Mrs. Punam Rastogi is correct, yet it cannot be held that this amount is included in the cash seized from the party. The sale proceeds of this gold was, in fact, deposited in her account on 3-10-1984 and the amount was withdrawn on 19-10-1984. It is improbable that a family of businessman would withdraw such an amount from the bank and keep it in cash for a transaction relating to a house which followed several months later. In fact, for such a transaction the money could have been withdrawn at any time proximate to the deal. Same is true of the amount of Rs. 34,230/- which was deposited on 28-2-1984 and withdrawn on 6-3-1984. Thus, if the version of the party is to be believed this amount was kept in cash with them for nearly one year. It is also seen that Shri Ram Narain had also withdrawn Rs. 9,000/- on 8-3-1984, Rs. 36,000/- on 9-1-1985. In this case also it is not understood why such a large amount should be withdrawn for a deal which was nowhere insight. In any case the amount could have been withdrawn just a day prior to the proposed deal of the house. Rs. 55,000/- and Rs. 55,600/- respectively have been shown as the amount of cash available with Shri Kamlesh Kumar Rastogi and Shri Ashok Kumar Rastogi. I am not going into the possibility of such amount being available with them in the normal course of business. However, what is important as far as the case under the Customs Act is concerned is this that Shri Ashok Kumar Rastogi was found carrying this large amount of cash along with his brother and going towards the Railway Station. I do not think that in the normal course anybody would be taking the total cash available with him when leaving for routine transactions, particularly when the bank balance of the party shows negligible amount. The balance available with Shri Ram Narain on 11th January 1985 was Rs. 301 /-. The balance available with Ashok Kumar Rastogi is not indicated in the recorded statement submitted by the party. I am not dealing with the smaller amounts of Rs. 6,000/- and Rs. 2,000/- and Rs. 15,000/- explained by Shri Ashok Kumar Rastogi in his letter."
The reasoning of the adjudicating authority cannot be faulted with and no convincing argument has been adduced before us to dislodge the finding in the impugned order.
5.1 The case law cited by the learned Counsel for the appellants is distinguishable on facts. In the case of Shri Jumma Abdul Gani v. Collector of Customs, Bombay - 1983 (12) E.L.T. 401, the Tribunal set aside the confiscation of Indian currency of Rs. 12,790/- seized from the appellant's residence on the ground that the appellant had explained the possession of this amount and that the order of confiscation cannot be sustained merely on the presumption that this was a commission for carrying smuggled gold and the sale proceeds and that the commission was paid out of such sale proceeds.
5.2 In the case of A.K. Agarwal v. Collector of Customs reported in 1991 (52) E.L.T. 565, the confiscation of Indian currency seized from the premises under the occupation and control of the appellant was set aside on the ground that there was nothing to show that it represented sale proceeds of smuggled gold and the appellant had never admitted that was sale proceeds of contraband gold.
5.3 In the case of Abdul Mannan v. Collector of Customs reported in 1991 (54) E.L.T. 350 the appellant was not present when his premises was raided on 9-9-1985 and broken metal scrap of foreign origin and synthetic fabrics, shirting of Bangladesh origin was recovered. The goods were lying outside the premises of the appellant. The minor son of the appellant was examined and he categorically denied the ownership or his father having any connection with the goods and he had stated that Indian currency seized from the locker of the almirah in the house belonged to his father. The appellant immediately appeared before the Department with an application for return of Indian currency and filed affidavits of 9 persons claiming ownership of the seized currency. It is in these circumstances that the Tribunal set aside the confiscation of the Indian currency.
5.4 In the present case, however, the inculpatory statement of Ashok Kumar Rastogi which is corroborated by the statement of Ram Chander Rastogi is sufficient for the Department to discharge the burden of proof cast upon it under Section 121 of the Customs Act, 1962.
6. In the light of the above discussion we hold that the Department has discharged the onus and established that the seized currency represented sale proceeds of smuggled gold and that the appellants herein were liable to penal action. We, therefore, uphold the order of confiscation and the penalties imposed on both the appellants under the Customs Act and reject the appeals.