S. PREMGIRI Vs. CC

JUDGEMENT

(1.) THIS is an appeal against Order -in -Original No. 537/89 dated 21.12.1990 concerning seizure of 25 gold bars with foreign markings valued at Rs. 9,78,401/ - from S/Shri Prakash Babu and V. Swaminathan at Madras Central Station on 27.11.1989 and seizure of Indian currency of Rs. 4,25,000/ - from the shop premises of the present appellants. The original authority has absolutely confiscated the 25 gold bars as also the Indian currency of Rs. 4,25,000/ - holding that the said currency represented sales proceeds of the smuggled gold bars. Penalty of Rs. 1,00,000/ - has been imposed on the present appellants as also Rs. 5000/ - each on S/Shri Prakash Babu and V. Swaminathan and Rs. 10,000/ - on one Shri Satyavan Patel. Except for the present appellant, no other appeal was filed before us in this connection.

(2.) HEARD Shri M. Ajmer Ali, Ld. Advocate for the appellants and Shri S. Sudarsan, Ld. DR.

(3.) LD . Advocate submits that firstly the appellants do not claim the gold confiscated. Secondly, he submits that the appellants had retracted the statements both when he was produced before the Magistrate who examined his bail application as well as by letter dated 29.11.1989 to the DRI, Madras. He submits that during the personal hearing, the two persons namely Shri Prakash Babu and Shri V. Swaminathan from whose possession gold bars have been seized had submitted to the original authority that they had not received this gold bars from the present appellants but one Mustafa. Thirdly, he submits that the gold bars had not been seized from the premises of the present appellant who was dealing in trading of cashew, etc. The Indian currency which was recovered from the shop premises had therefore no relationship or nexus with any smuggled gold but was kept in the course of the appellant's trading in Cashew, etc. He submits that as far as the Indian currency is concerned, the burden to establish the nexus as representing between that Indian currency and sale proceeds of smuggled goods lies on the department. He cites the decision of Ramchandra v. CC as in , Hukmi Chand Ghewar Chand Saraf v. CC as in , as also this Tribunal final order No. 3050/99 dated 30.11.1999 in the case of Manoharlal Jain v. CC and Final Order No. 2427/98 dated 13.11.1998 in the case of K.K. Ashraf v. CC. He submits that in all these decisions, the burden to show this nexus lies on the department. He further submits that most of these decisions have relied on the earlier decision of Ramchandra v. CC wherein 4 tests had been laid down by the Tribunal in connection with the Indian currencies representing sales proceeds of smuggled goods. He further submits that apart from the retracted statements as well as the deposition to the contrary in the personal hearing, there is no other evidence to show that the Indian currency has any nexus with the gold seized. He, therefore, prays that the Indian currency be released to the appellants. With respect to the penalty of Rs. 1,00,000/ - imposed on the appellants, he submits that since there is no corroborative or direct evidence against him, the penalty also needs to be set aside.