MUKESH SHAH Vs. COMMR. OF CUSTOMS

JUDGEMENT

(1.) THE present appeal is filed against the Order -in -Appeal No. Prev/Cus/33/2010 dated -20.09.2010 passed by the Commissioner of Customs (Appeals), Kolkata.

(2.) THE Ld. Consultant Shri B.N. Chattopadhyaya assailing the impugned order, submitted that it suffers from self -contradiction. He has submitted that the adjudicating authority on the same set of facts and circumstances, after accepting the defense evidences and submissions, dropped the proceedings initiated under the Gold Control Act, 1968 but wrongly confirmed the Order of confiscation& penalty under the Customs Act, 1962. The Ld. Consultant submitted that on this ground alone, the impugned order is not sustainable and hence the order is liable to set aside. Advancing his argument further, the Ld. Consultant has submitted that out of the 45 sovereign gold coins seized from the possession of the appellant, 43 coins pertain to the period prior to independence, as is evident from the inscriptions on the said gold coins, a fact not disputed by the Department. Only two Gold coins pertain to the period after 1947 i.e. of the year 1965&1968 weighing around 16 gms. in total against the total seized quantity of 301.450 gms. The principal argument of the Ld. Consultant is that since these coins pertain to the period prior to 1947 and had been freely available in India during those days, hence the appellant could not be asked to produce evidence to establish that these coins were legitimately possessed by him. The second line of argument advanced by the Ld. Consultant is that these gold coins are the an central family property and the appellant had filed necessary Returns under the Income Tax Act with the Income Tax Authorities mentioning the value of these gold coins in the said Returns. Thus, the seized gold coins had been legally possessed by the appellant and cannot be said to be smuggled. He has further submitted that the statement furnished by Shri Mukesh Shah on 03/6/1987 was later retracted and hence cannot be considered as a valid and reliable piece of evidence for deciding the case against him. In support he has referred to the following judgments: a) Vinod Solanki Vs. Union of India : 2009 (233) ELT 157 (S.C.) b) Customs Vs. Mohammad Bagour : 2012 (275) ELT 513 (Del) c) Ravindran @ John and another Vs. Superintendent of Customs : 2007 (80) RLT 427 (S.C.) (Para 13).Also, the Ld. Consultant has submitted that merely not establishing the inheritance of the gold coins by the appellant would not be considered a fact against the appellant. In support, he has referred to the following decisions :Hansraj Jeevandas, Madras Vs. CCE, Madras : 1984 (16) ELT 272 (Tri.); Gunwant Lal Godawat Vs. CC, Jaipur : 1998 (99) ELT 332 (Tri.); CC(Prev.), Mumbai Vs. Sanjay Badgamia : 2004 (168) ELT 83 (Mum.); CC, Indore VS. Pushpwati Nagar : 2006 (193) ELT 116 (Tri. -Del.); and Rajiv Shastri Vs. CC, Ahmedabad, 2009 (238) ELT 163 (Tri. -Ahm.).

(3.) HEARD both sides at length and perused the records. Undisputedly, 45 Nos. of gold coins weighing 301.450 gms. had been seized from the possession of the appellant on 03/6/1987 alongwith Indian currency of Rs. 20,000/ - on the reasonable belief that the said gold sovereigns were smuggled and the currency were the proceeds of the contraband goods. It is also not in dispute that the said gold coins were of foreign origin; and 43 coins bear inscription of periods prior to 1947 and 2 coins were of 1967 & 1968. The initial claim of the appellant, in his statement dt. 03.06.1987 was that being a freelance bullion broker, these gold coins were procured/purchased from the open market and not smuggled by him. On the Indian currency, found from his possession, the appellant disclosed that the same were sale proceeds of four kgs. of silver and furnished the names of vendors/purchasers of the said silver. The said statement was claimed to have been later retracted by him on 13/6/1987. It is the contention of the Ld. Consultant for the Appellant that the statement dt. 03.06.1987 cannot be considered as a reliable piece of evidence being retracted by the Appellant on 13/6/1987 in view of the principle of law laid down by the Hon'ble apex Court in Vinod Solanki's case and other cases. (cited supra).