Customs, Excise and Gold Tribunal - Mumbai
Jumma Abdul Gani vs Collector Of Customs on 15 January, 1983
Equivalent citations: 1983ECR190D(TRI.-MUMBAI), 1983(12)ELT401(TRI-MUMBAI)
ORDER
1. This matter has been transferred to the Tribunal under Section 131-B(2) of the Customs Act. It is an appeal against the order of the Appellate Collector of Customs upholding confiscation of one gold piece valued at Rs. 430/- under Section 111(d) of the Customs Act, Indian currency amounting to Rs. 12,790/- under Section 121 ibid and penalty of Rs. 1,000/- under Section 112 of the Customs Act, 1962.
2. As regards the gold, the appellant has contended in writing and orally that the confiscated gold is not bullion but an ornament, and that he explained its possession through a statement under Section 108 recorded from him immediately on seizure. He had explained that the article in question was given to him as gift by a European whom he had entertained as a guide. He has therefore implied that the onus of proof cast on him under Section 123 of the Customs Act has been discharged.
3. As regards the amount of currency of Rs. 12,790/- seized from his residence on 7-9-78 the appellant has explained the possession of the same and contended that it was not the sale proceeds of smuggled gold liable to confiscation under Section 121 of the Customs Act, though he has admitted having transported smuggled gold on behalf of his brother-in-law Shri Mohamed Yusuf Ahmed to the purchaser Shri Vimalchand and carried the sale proceeds of the currency from Shri Vimalchand to his brother-in-law Shri Mohamed Yusuf Ahmed.
4. As regards the levy of penalty it has been argued that the Asstt. Collector levied the penalty for transporting the smuggled gold on behalf of his brother-in-law though this fact was not mentioned in the show cause notice. It has therefore been prayed that the amount of penalty should be remitted.
5. The Departmental Representative has drawn our attention to the fact that the show cause notice is not defective in the way argued on behalf of the appellant. He has also drawn our attention to the statements dated 9-9-78, 11-9-78 and 12-9-78 of the appellant. He has accordingly defended the order and submitted that it does not need any modification.
6. We have examined the arguments on both the sides. So far as confiscation of gold is concerned, it is seen that the onus of proof has been cast on Shri Jumma Abdul Gani. He has not discharged the onus even though he has tried to explain the source of its acquisition. The fact that the gold article is bullion or jewellery viz , locket is not very relevant as Section 123 applies to gold and manufactures thereof. Even if the same is held to be a manufacture of gold, the legal position will not change. On the other hand, we have seen from the description of the article seized in the panchanama that it is a gold bullion and not a gold article. The markings on the piece of gold show that it is gold bullion and not a locket as contended by the appellant. In view of these circumstances, we find that the confiscation of the gold bullion is correct in law as the burden of proof is not discharged and the same is sustained.
7. As regards the order of confiscation of the Indian Currency of Rs. 12,790/- it is seen that there is no evidence to hold that the same represents the sale proceeds of smuggled gold. We cannot fully accept the department's contention that it was a commission for carrying the smuggled gold and the sale proceeds thereof and that the commission was paid out of the sale proceeds, and there is no evidence to this effect. It is only the presumption of the department that the commission was paid out of the sale proceeds, and presumption cannot serve the need of proof. On the other hand, Shri Jumma Abdul Gani has explained the possession of this amount. Whatever be the merits of the explanation, the order of confiscation cannot be sustained merely on the grounds of presumption that this was a commission for carrying the smuggled gold and the sale proceeds and that the commission was paid out of such sale proceeds. In the absence of any evidence to this effect, the confiscation of the Indian currency notes amounting to Rs. 12,790/- is not justified and accordingly the order of confiscation is set aside and the amount is ordered to be returned to Shri Jumma Abdul Gani.
8. As regards the levy of penalty on Shri Jumma Abdul Gani it is seen that the same has been levied in connection with the seizure of 5 grams of gold bullion valued at Rs. 430/- made from him and for having carried smuggled gold as per annexure 1 to the show cause notice as mentioned in para 11 of the show cause notice dated 5-3-79. There is no denial regarding the ownership of the gold weighing 5 grams seized from Jumma Abdul Gani on 7-9-78 and for haying carried the smuggled gold and sale proceeds there of. In the aforesaid circumstances the order of penalty is correct and sustainable.
9. The Order of the Collector of Customs, Appeal dated 15-4-80 is modified to the above extent, and the appeal is otherwise rejected.