Custom, Excise & Service Tax Tribunal
Shri Hem Raj Soni, S/O Shri Heera Lal vs Cce, Jaipur on 25 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 31.3.2014
Date of Pronouncement : 25.4.2014
Appeal No. C/635-636/2009-CU(SM)
[Arising out of the Order-in-Appeal No. 2-5(DK)CUS/JPR-II/2009 dated 30.1.2009 passed by the Commissioner of Central Excise, (Appeals), Jaipur-II)
For Approval & signature :
Honble Ms. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
Shri Hem Raj Soni, S/o Shri Heera Lal Appellants
Shri Dwarka Dass, S/o Shri Pokar Dass
Vs.
CCE, Jaipur Respondent
Appearance Shri U.K. Sharma, Advocate - for the appellant Shri R.K. Mishra, D.R. - for the respondent CORAM:Honble Ms. Archana Wadhwa, Member (Judicial) Final Order No.51760-51761/2014 Per Archana Wadhwa:
Both appeals are being disposed of by a common order as they arise out of the same impugned order passed by the authorities below.
2. As per the facts on record, Shri Hem Raj and Shri Dwarka Dass were travelling in a taxi, which was intercepted by the Police on 14.12.1992. The personal search of the said two persons resulted in recovery of Rs.3,60,000/- from the pocket of jacket worn by Shri Hem Raj and Rs.1,25,000/- from the pocket of the jacket worn by Shri Dwarka Dass. In addition, Indian currency of Rs.3,250/- was also recovered from the pocket of the shirt worn by Shri Hem Raj. The said appellants could not give any satisfied reply to the possession of the said Indian currency, the police, on a reasonable belief that such amount pertains to some illegal business, detained the present appellant along with the seizure of the accompanied baggage etc. On enquiry the said persons revealed that the Indian currency in question was the sale proceeds of foreign marked silver and named different persons as the owners of the same.
3. The Indian currency along with the other miscellaneous items was handed over to the Customs on 15.12.1992. The suit case seized along with Indian currency resulted in further recovery of an amount of Rs.5 lakhs. As such total of Rs.9,93,494/- was recovered from the said two persons.
4. The statement of Shri Hem Raj was recorded on 16.12.1992 wherein he deposed that the money pertains to Shri Dwarka Dass, who had sold 134 kgs. of silver to Shri Devki Nandan and Shri Kanihya Lal Saraf. In the course of further investigations, summons were issued to Shri Devki Nandan and Shri Kanhiya Lal, who did not appear. However, Shri Dwarka Dass, in his statement denied any connection with the money in question and submitted that the same belongs to Shri Hem Raj only.
5. On the above basis proceedings were initiated against all the persons by way of issuance of a Show Cause Notice dated 27.5.1993 for confiscation of the Indian currency as also for imposition of penalty. The same resulted in passing of an order by the original adjudicating authority confiscating the Indian currency absolutely and imposing penalties of Rs.75,000/- each on the present appellants and of Rs.10,000/- on the other co-noticees. In appeal, Commissioner (Appeals) upheld the order of the lower authorities but set aside the penalties of Rs.10,000/- imposed on other appellants. Hence the present two appeals.
6. Though the appellants have taken number of grounds before the authorities below including the affidavits of various persons showing that the money was given to Shri Hem Raj for purchase of agriculture land, the lower authorities have rejected their submissions as an afterthought. However, I find that the entire case of the Revenue is based upon the initial statement of Shri Hem Raj. The lower authorities have not found favour with the affidavits filed by various persons indicating that the money in question was given to Shri Hem Raj for purchase of agriculture land.
Ld. Advocate have placed on records number of decisions laying down that heavy onus is placed upon the Revenue for establishing that the seized Indian currency was the sale proceeds of the smuggled items. It is the appellants case that there is no evidence on record to reflect upon the fact that the Indian currency in question was the sale proceeds of the smuggled silver.
7. The Honble Punjab & Haryana High Court in the case of Gurmukh Singh Vs. Union of India & Others - 1984 (18) ELT 274 (P&H) has observed that if there is no record wherein it could be shown that the petitioner had at any stage imported any goods in pursuance of the import licence, therefore it cannot be the case of the authorities that the seized currency is the sale proceeds of the smuggled goods. In the absence of such evidence the amount is returnable to the person from whom it is seized. The contention of the Revenue that they are competent to confiscate the sale proceeds of the smuggled goods under Section 121 of the Customs Act is wholly fallacious.
The Tribunal in the case of Dattaji Deokar Vs. CC, Bhubaneswar-I - 2002 (147) ELT 390 (Tri.-Kolkata) has held that Revenue is required to prove beyond doubt that the Indian currency was sale proceeds of smuggled gold and in the absence of any evidence on record to establish the same, the confiscation of the Indian currency is not justified.
8. In the present case, I find that there is virtually no evidence on record to establish that the Indian currency in question is the sale proceeds of the smuggled silver as alleged by the Revenue. The entire case is based upon the seizure by the police and the initial statement of Shri Hem Raj, which are also contradictory in nature. He has named different person at different points of time as recorded in the impugned order. During adjudication the appellants have taken a stand that the money in question was given to him by various persons, for the purchase of the agriculture land. The said persons who have given their affidavits do not stand examined by the adjudicating authorities, who have simplicitor rejected the said affidavits by observing that the same is an afterthought.
In any case the provisions of Section 121 of the Customs Act stands examined by the various Courts and it is well settled that the onus to prove, beyond doubt, that the Indian currency and the sale proceeds of smuggled goods is on the Revenue. There is nothing on record to show as to which silver stands sold by the appellant and who are the buyers of the same. Whether the said silver, even if sold, was smuggled or not. In the absence of an answer to all these questions, the confiscation of the Indian currency and the imposition of penalty is on the appellants is not justified. Accordingly, the impugned orders are set aside and appeals are allowed with consequential relief to the appellants. Appeals are allowed.
(Pronounced in Court on 25.4.2014) (Archana Wadhwa) Member (Judicial) RM 6