Customs, Excise and Gold Tribunal - Tamil Nadu
Rajendra Prabhu vs Commissioner Of Central Excise on 9 June, 1997
Equivalent citations: 1997(96)ELT412(TRI-CHENNAI)
ORDER T.P. Nambiar, Member (J)
1. Appeal No. C/65/96/MAS. - This appeal is filed by appellant Rajendra Prabhu against the order passed by the Collector of Central Excise & Customs, Kochi in terms of which he confiscated 30 gold bars bearing foreign markings. He also imposed a penalty on the appellant. The facts of the case are that on 22-10-1994, one Shri Rajendra Prabhu, was intercepted by the Circle Inspector of Police, Chalakudy, near Petta Ashram, Chalakudy. The police recovered 30 gold bars with foreign markings, from him. Shri Rajendra Prabhu was handed over to the Supdt. SCP Unit, Kodungallur. In a statement given by him on the same day, Shri Rajendra Prabhu, said that he purchased the gold from Shri Puthupally Thomas, Kot-tayam, on payment of Rs. 15 lakhs and he did not have any document to prove the licit importation of the gold. Therefore, the gold was seized under the Customs Act, on the reasonable belief that the gold bars were liable to confiscation. On 23-10-1994 he gave a statement before the Customs Officers, wherein he reiterated that gold was purchased from Shri P. Thomas and gave one telephone number at Kottayam belonging to Shri Thomas. Efforts made to locate Shri P. Thomas were not successful. The telephone number given by Shri Rajendra Prabhu was found to be telephone number of State Bank of Travan-core, Mannanam Branch. Subsequently, on 28-10-1994 Shri Balan, Malayil House, Nanmanda, P.O. Kozhikode District, wrote a letter to the Central Excise Supdt., SCP Unit, Kodungallur and claimed that he brought 42 gold biscuits from Dubai on 19-10-1994 and cleared the same on payment of Customs duty through Trivandrum Airport. He also claimed that he handed over 30 gold biscuits to Shri Rajenara Prabhu for selling them at Coimbatore. He enclosed copy of the receipt indicating the payment of duty on 42 gold biscuits. On 31-10-1994 Shri Rajendra Prabhu wrote a letter corroborating the claim of Shri Balan. He gave a statement on 14-11-1994 wherein he retracted his statement dated 23-10-1994 and confirmed the claim of Shri Balan. According to him, he made this revised claim as soon as he was released on bail from judicial custody. On 14-11-1994, Shri Balan appeared before the Supdt., Customs and Central Excise, SCP Unit, Kodungallur and confirmed his claim. Shri Rajendra Prabhu gave two different versions regarding the possession of the gold and since he had no documents to prove the licit origin of the gold as soon as it is seized, a show cause notice was issued to Rajendra Prabhu asking why the gold should not be confiscated and penalty should not be imposed. SCN was also issued to Shri Balan, asking why penalty should not be imposed on him under the Customs Act.
2. Thereafter the appellant replied to the show cause notice and the impugned order was passed.
3. Shri M. Rajendran, learned Consultant appearing for the appellant contended that since the gold bars were seized by the police the provisions of Section 123 of the Customs Act, 1962 cannot be invoked against the appellant in this case. He therefore, pointed out that it was for the department to prove that the gold in question is smuggled. In this connection he pointed out that the initial statement of appellant Rajendra Prabhu cannot be taken into account as it was taken under duress and coercion. He further pointed out that the gold in question was imported by Balan and he had given claim before the adjudicating authority. He pointed out that appellant Rajendra Prabhu had established that the gold was legally imported by producing baggage receipt issued in his favour. He also pointed out that the statement of Shri Balan was also taken under Section 108 of the Customs Act, 1962. He had stated that he had brought 42 gold biscuits which he had purchased for Rs. 10,07,738/-. He also produced baggage receipt in question. Therefore, he pointed out that the department has failed to prove that the gold in question was smuggled. It was further pointed out that the statement of Rajendra Prabhu was taken by keeping him in prolonged custody and such statement cannot be relied upon. In these circumstances, he stated that the confiscation of the gold is not in order. Further he drew our attention to the bail application filed by the appellant on 24-10-1994 before the Magistrate. It was mentioned in the bail application that the initial statement is not voluntary and true as the same was recorded under threat and coercion.
4. Shri V. Thyagaraj, the learned SDR appearing for the department contended that in the beginning the appellant gave a statement wherein he had stated that the gold belonged to one P. Thomas. On enquiry it was found that the gold did not actually belong to the above said person and the telephone number given was also not correct. He pointed out that P. Thomas mentioned by the appellant was not an existing person and the telephone number given was also not correct. He further contended that the appellant was produced before the Additional Chief Judicial Magistrate. The appellant did not make any such statement of ill treatment. He further pointed out that the claim of Balan was made only on 28-10-1994 and it is clear that it is an afterthought. He further pointed out that the very fact that the appellant failed to mention the name of Balan initially goes to show that Balan was introduced only as an afterthought. He reiterated the reasoning in the impugned order.
5. We have considered the submissions made by both the sides. It is seen that the gold initially was seized by the Police and it was handed over to the Customs Officers. Therefore, the presumption under Section 123 of the Customs Act, 1962 is not invokable in this case. The adjudicating authority also did not invoke this presumption under Section 123 of the Customs Act, 1962. Still the prosecution is entitled to prove the case by available evidence on record. All that is required to be established is such a degree of probability that a prudent man may on its basis believe in the existence of the fact in issue that the gold is smuggled. The department is not expected to prove its case with mathematical precision. This principle is laid down by the Hon'ble Supreme Court in the case of D. Bhoormull reported in 1983 (13) E.L.T. 1546. These principles were further reiterated by the Hon'ble Supreme Court in the decision reported in AIR 1980 SC 793, wherein in paras 4 to 8, their Lordships have held as follows :
"4. Analysing the essential ingredients of clause (b), it is manifest that before a conviction can be recorded under it, the prosecution must prove that the accused has acquired possession of or is in any way concerned in depositing, keeping etc., any goods which he knows or has reason to believe are liable to confiscation under Section 111. Thus, in the instant case, as no presumption under Section 123 was available, it was for the prosecution to prove affirmatively that the appellant was in possession of smuggled gold knowing full well that it was imported from outside the country so as to fall within the ambit of Section 111. Dr. Chitale, appearing for the appellant, contended that if the presumption under Section 123 is not available to the prosecution, then there is no legal evidence to show that the appellant had any knowledge or had any reason to believe that the goods were imported or were smuggled without a lawful permit. The Counsel appearing for the State, however, submitted that the fact that the gold bore foreign markings and was recovered from the possession of the appellant who had admitted in his statement before the Customs Officers that some unknown person had given it to him, would itself raise a sufficient presumption to attribute knowledge to the appellant that the gold was smuggled without any permit. Although the question raised by the Counsel for the parties is not free from difficulty, an overall consideration of the special facts of the present case would show that there could be no difficulty in holding that having regard to the admission made by the appellant and his subsequent conduct, the onus would shift to the appellant to show that the gold found from him with foreign markings was imported without any permit to his knowledge. This will be the combined effect of the provisions of Sections 106 and 114 of the Evidence Act. The matter was considered at great length in the case of Behram Khurshed Pesikaka v. The State of Bombay, (1955) I SCR 613 where this Court holding that Section 106 could not be construed to place the onus on the accused to prove the prosecution case, observed as follows :-
"Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See Attygallo v. The King, AIR 1936 PC 169, also In Re : Kanalcasabai Pillai, AIR 1940 Mad. 1). It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by Section 106 of the Evidence Act." These observations were made with respect to the peculiar facts of that case. It appears that what had happened in that case was that the appellant was found to be guilty of an offence under the Prohibition Act and the only evidence to prove his guilt was that he was smelling of alcohol. This Court held that it was for the prosecution to prove the contravention of the provisions of the Prohibition Act and to prove further that particular intoxicant which was a liquor under the Act, was consumed by the accused and merely because the accused knew what he had taken (which was a matter within his knowledge) could not relieve the prosecution of the burden of proving that the liquor consumed was an intoxicant as defined under the Act. It is, therefore, clear that the observations made by this Court regarding the interpretation of Section 106 of the Evidence Act would not apply to the facts of the present case. In the case of Issar das Daulat Ram v. The Union of India, (1962) Supp (1) SCR 358 this Court, after discussing the admitted circumstances of the case, found that the relevant pieces of evidence would prove the guilty knowledge of the accused. That was a case which arose under Section 178A of the Sea Customs Act and this Court observed as follows:-
"If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants.
...These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned Counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in paragraph 6 we have set out earlier."
5. The facts of the present case appear to us to be almost on all fours with the facts of the case mentioned above. Here also, the facts are that gold with foreign markings in the shape of biscuits without indicating any change was recovered from the possession of the appellant. Secondly, the appellant admitted that the gold was brought from outside the country. The appellant further admitted that he did not hold any permit for importing the gold and the plea taken by him was that some unknown person had delivered the gold to him. In view of these circumstances and the fact as to how the accused came into possession of the gold and whether it was imported or not being within the special knowledge of the accused, if he failed to disclose the identity of the person who gave him the gold, then it was open to the Court to presume under Sections 106 and 114 of the Evidence Act that the appellant knew that the gold in his possession was smuggled and imported without permit.
6. In the State of Punjab v. Gian Chand (Criminal Appeal No. 195 of 1962 disposed of on 2-4-1968 (SC), while examining the validity of conviction and sentence under Section 167(81) of the Sea Customs Act, 1878, this Court held that as the accused did not claim any ownership over the gold and was a bullion merchant, the mere fact that the gold had foreign markings would not be sufficient to prove that the accused had knowledge that the gold was smuggled. In this connection, this Court observed as follows :-
"In our view, the High Court was right in its conclusion because the fact that none of the respondents claimed ownership over the said gold could not necessarily mean either that the gold was smuggled gold or that the respondents were in possession thereof with the knowledge that it was so. The fact that the gold has foreign marks stamped on it can only mean that the gold was foreign. But since such foreign gold used to be imported before the present restrictions were imposed on its importation, it could have been imported without any violation of law. Consequently, that fact alone would not establish either of the two ingredients of Section 167(81)."
7. The facts of this case are, however, clearly distinguishable from those of the present case. In the first place, in the case mentioned above, the accused was a bullion merchant and it was in the very nature of circumstances and as a part of his profession, natural for him to be in possession of gold. Secondly, the Court clearly held that during those days foreign gold used to be freely imported in our country and therefore the mere presence of foreign markings would not be sufficient to raise a presumption under Section 106 of the Evidence Act so as to attribute knowledge to the accused that the gold was smuggled. In the instant case, the facts are quite different and so is the nature of the admission made by the appellant.
8. In a later decision of this Court in the case of Commissioner of Income Tax, Madras v. Best & Co. (P.) Ltd., (1966) 2 SCR 480 this Court observed as follows:-
"When sufficient evidence, either direct or circumstantial, in respect of its contention was disclosed by the Revenue, adverse inference could be drawn against the assessee if he failed to put before the Department material which was in his exclusive possession. The process is described in the law of evidence as shifting of the onus in the course of a proceeding from one party to the other."
It is true that this case arose under the provisions of the Income Tax Act but the principles laid down by this Court would apply equally to the facts of the present case. In the case of Collector of Customs, Madras v. D. Bhooramal, (1974) 3 SCR 833, a case under the Customs Act, while dwelling on the nature and purport of the onus which lay on the prosecution, this Court observed as follows :-
"It cannot be disputed that in proceeding for imposing penalties under Clause (8) of Section 167 to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree.... All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof, often it is nothing more than a prudent man's estimate as to the probabilities of the case."
Similarly, while dealing with the merits of the case, this Court made the following observations:-
"In the case before us, the circumstantial evidence suggesting the inference that the goods were illicitly imported into India, was similar and reasonably pointed towards the conclusion drawn by the Collector....The Collector had given the fullest opportunity to Bhoormull to establish the alleged acquisition of the goods in the normal course of business. In doing so, he was not throwing the burden of proving what the Department had to establish, on Bhoormull. He was simply giving him a fair opportunity of rebutting the first and the foremost presumption that arose out of the tell-tale circumstances in which the goods were found, regarding their being smuggled goods by disclosing facts within his special knowledge."
It was also pointed out that the broad effect of the application of the basic principles underlying Section 106 of the Evidence Act would be that the onus is discharged if the prosecution adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved. In the case of Labchand Dhanpat Singh Jain v. The State of Maharashtra, (1975) 2 SCR 907 while this Court was again considering the extent and application of Sections 106 and 114 of the Evidence Act and in this connection, observed as follows :-
"Even if we were to apply the ratio decidendi of Gian Chand's case (supra) in the case before us, we find that the result would only be that no presumption under Section 123 of the Act could be used against the appellant ...We do not think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accused's guilty knowledge.... A reference to Issardas Daulat Ram v. Union of India, (1962) Supp 1 SCR 358 is enough to show that the conduct of the accused and the incredible version set up by him were enough to saddle the accused with the necessary knowledge of the character of the goods found in his possession.
At least, the burden of proving an innocent receipt of gold lay upon the appellant under Section 106, Evidence Act. The totality of facts proved was enough, in our opinion, to raise a presumption under Section 114, Evidence Act that the gold had been illegally imported into the country so as to [be] covered by Section lll(d) of the Act. The appellant had not offered any other reasonable explanation of the manner in which it was being carried."
The facts in this case appear to be very similar to the facts in the present case. Furthermore, the case of Balumal Jamnadas Batra v. State of Maharashtra, (1976) 1 SCR 539 was also a case under the Customs Act and there also the presumption under Section 123 was not applicable. It was held therein that having regard to the conduct of the accused and nature of the articles metis rea was established. In this connection, this Court observed as follows :-
"The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were parts of the State in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The appellant's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or mens rea."
6. It is therefore seen from the above said cases that the Hon'ble Supreme Court has drawn a presumption against the accused from the fact that the articles were concealed and had particular markings features. In the present case, it is seen that the appellant was intercepted by the officers and he did not mention the name of Balan. He mentioned the name of one P. Thomas and also gave a wrong phone number. The argument of the Consultant for the appellants is that the department should have found out from the said Thomas and made enquiry, has no relevance. The conduct of the appellant is relevant in this case. The very fact that he gave wrong name and a wrong telephone number goes to show the guilt of the appellant.
7. It is further seen that when he was produced before the Magistrate, the Magistrate recorded the following observation on 24-10-1994.
"The accused is produced before me at 6.30 PM. He stated that he was threatened while recording statement. But no physical harm was caused to him. No visible marks of violence also. Perused the remand report for the reasons stated therein accused is remanded to Sub-Jail, Ernakulam till 31-10-1994."
8. It is further seen that he only stated that he was threatened while recording the statement. He clearly admitted that there was no physical harm which were caused to him and there was no visible mark or violence also. It is therefore, seen that in such case, the burden of proof is on the appellant to prove that the statement was recorded under threat and coercion. These principles were laid down by the Hon'ble Supreme Court in the decision reported in 1992 (40) ECC 352. In para 31 their Lordships have held as under:
"At the same time it is to be noted that merely because a statement is retracted it cannot be a recorded as unvoluntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish his allegations of inducement, threat etc. against the officer who recorded the statement" :-
9. It is further seen that the appellant in the initial statement had given following information :-
"The mahazer was read to me and made clear to me. Everything written which are true and correct. I have received the copy of mahazar. Sri Thomas has not given me any documents while giving me the above mentioned 30 Nos. of gold biscuits of foreign origin. I do not know whether any customs duty has been paid on this 30 gold biscuits. I do not know that gold biscuits of foreign origin are smuggled into India without paying any customs duty. My answer to your question that whether the above mentioned 30 gold biscuits of foreign origin were smuggled to India without paying any customs duty is that I do not know anything about it. I have not enquired whether customs duty has been paid on the above mentioned 30 gold biscuits or not. I am the only owner of the above mentioned 30 gold biscuits. No body else has got any right in these 30 Nos. of gold biscuits of foreign origin seized from me by the C.I. of Police, Chalakudy and handed over to you. I am an Income tax assessee."
10. Therefore, it is seen that this initial statement given by the appellant has revealed that one Thomas gave him the gold biscuits and there are no duty paying documents. This statement is binding on the appellant. This admission has got evidentiary value. In the decision reported in 1997 (90) E.L.T. 241, their Lordships have held as follows :
"Allegation as of threat or implication of his wife was as after thought. He did not mention the same before the Magistrate and obtained bail"
It is further seen that when he appeared before the Magistrate he never mentioned that the gold belonged to Balan. He never mentioned about any physical violence. Therefore, this initial statement is voluntary and true and in the above said decision, the Supreme Court has held as follows (para 26):
"26. In Naresh J. Sukhawani v. Union of India -1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramas-wamy, ]., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India -1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediator) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Customs Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve."
11. Therefore, even if confession is retracted the same is admissible in evidence. In this connection at para 31 of the above cited judgment, their Lordships have held as under :
"31. It is seen that the contraband of 200 gold biscuits of foreign marking concealed in a wooden box and kept in the pit in the compound of the appellant was recovered at 9.00 a.m. on December 6,1980 in the presence of Panch (mediator) Witnesses including PW-3. This is proved from the evidence of PWs 2,3 and 5. There was nothing for PW-3 to speak falsehood against the appellant who is a friend of him. PWs 2 and 5 also withstood the grueling cross-examination. There is nothing to disbelieve their evidence. The appellant herein made statement under Section 108 at 1 p.m. on December 6,1980, i.e., after four hours. It is unlikely that during that short period PW-2 and 5 would have obtained the retracted confession under Ex. P-4 in his own hand-writing running into 5 typed pages under threat or duress or promise. No doubt the wealth of details by itself is not an assurance of its voluntary character. The totality of the facts and circumstances would be taken into account. On a consideration of the evidence, the High Court accepted that Ex. P-4 is a voluntary and true confessional statement and accordingly it convicted the appellant of the offences. It is seen that Ex. P-4 was given in furtherance of the statutory compulsion and the appellant made statement in unequivocal terms admitting the guilt. It is seen that in Barkat Ram's case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhar's case and also in Rustom Das's case the retracted confessional statement found basis for conviction and in the latter the recoveries were relied as corroborative evidence. In Haroom Abdulla's case, this Court used the evidence of co-accused as corroborative evidence."
12. It is therefore see that retracted confessional statement can be relied upon and that is sufficient to establish the guilt of the appellant in this case since the initial statement of the appellant is voluntary and true.
13. It was the next contention that the statement was taken under prolonged custody of the appellant from 22nd to 24th March, 1994. But it is an after thought which should be allegecLand proved by the appellant. There is nothing on record to show that the appellant was not allowed to move until arrested on 23-3-1994. These are facts which are required to be alleged and proved. In the decision reported in 1997 (18) RLT 402, the Calcutta High court has held as under :
"25. It was not the Respondent No. l's case at any stage that he had been deprived of his personal liberty when he recorded the confessional statement. It is something which he should have alleged and established. There is in fact no evidence that the Respondent No. 1 was under any restraint placed on him by the Customs Authorities. The Respondent No. 1 could not be said to have been under arrest. The Full Bench decision of the Madras High Court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu : 1984 CRL. J. 134 is very instructive in the matter. The Full Bench was called upon to consider whether a confessional statement made before the Customs Authorities could be relied upon for the purpose of passing an order under the Act. It was said :
"In a proceeding under the provisions of the Customs Act, when any person is required or summoned for an enquiry under Section 107 or Section 108, that person is not an accused person and the officer summoning that person is not a police officer Any confession made by a person summoned under Section 107 or Section 108 before the Customs Officer is admissible in law since it is not hit either by Section 25 or Section 26 of the Evidence Act. If it is shown in a given case that such a confession was obtained by the Customs Officer by exertion of inducement, threat, coercion or duress or extracted by illegally detaining the person an unauthorised prolonged custody in contravention of the provisions of the Customs Act, or obtained by using third degree methods, then the question about the acceptability and reliability of such in voluntary confessions would arise."
26. The Supreme Court approved the decision of the Full Bench in Directorate of Enforcement v. Deepak Mahajan - AIR 1994 SC 1775."
Therefore, it is for the appellant to prove that he was under restraint by the customs authorities. There is no such allegation by the appellant before the adjudicating authority nor is it proved before us. This argument also therefore, cannot be accepted.
14. The claim of Balan is only an afterthought. He claimed the gold biscuit only on 28-3-1994 and a baggage receipt has been produced by him to show that he imported 42 gold biscuits. The description of the gold biscuits was not mentioned in the baggage receipt. The gold biscuits seized in this case cannot be related to the gold biscuits imported by him. The customs authorities have given the baggage receipt but the said Balan has also not insisted mentioning the description of the gold biscuits in the baggage receipt. We are at a loss to understand as to why the Customs authorities are giving such vague baggage receipt without mentioning the weight of each biscuit and the description thereof. Issue of such certificate by the Customs Authorities will only help the smugglers to use those baggage receipts for.justifying their claim by stating that the gold biscuits are imported in terms of the said baggage receipts. This is a serious matter which is required to be looked into. We are of the view that this matter should be brought to the notice of the Central Board of Excise and Customs so that the officers concerned are given direction to issue proper receipts in order to ensure that the baggage receipts issued are not misused by smugglers in support of their claim. It is therefore, clear that the claim made by Balan on 28-3-1994 is only an afterthought and the same cannot be accepted more particularly in view of the first statement given by appellant Rajendra Prabhu. In this view of the matter we are of the view that confiscation of the gold biscuits is in order and we uphold the same.
15. In the facts and circumstances of the case, we reduce the penalty imposed on the appellant to Rs. 4.00 lacs (Rupees Four lacs). But for this modification the appeal of appellant Rajendra Prabhu is dismissed.
16. Appeal No. C/243/96 (Balan). - In view of the reasoning mentioned above, we hold that appellant Balan has not substantiated his claim for the gold biscuits and we reject his claim. His appeal is also dismissed.
17. A copy of this order be sent to the Central Board of Excise and Customs.